Boc Remedial Law Reviewer

REMEDIAL LAW

REMEDIAL LAW

REMEDIAL LAW

REMEDIAL LAW

TABLE OF CONTENTS

6. Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, Municipal Circuit Trial Courts ................................................................. 21 7. Shari’a Courts ......................................... 22 F. Jurisdiction over Cases Covered by The Revised Rules of Procedure for Small Claims Cases, The Revised Rules on Summary Procedure, and Barangay Conciliation .................................................... 23 G. Totality Rule................................................... 24 III. CIVIL PROCEDURE ......................................... 25 A. Actions ............................................................ 25 1. Meaning of Ordinary Civil Actions ... 25 2. Meaning of Special Civil Actions ....... 25 3. Meaning of Criminal Actions ............. 25 4. Civil Action v. Special Proceedings ... 25 5. Personal Actions and Real Actions.... 26 6. Local and Transitory Actions ............. 26 7. Actions in rem, in personam, and quasi in rem ..................................................... 27 8. Independent civil action ...................... 28 B. Cause of Action ............................................. 28 1. Meaning of Cause of Action ............... 28 2. Right of Action v. Cause of Action ... 28 3. Failure of the Complaint to State a Cause of Action .................................... 29 4. Test of Sufficiency of Cause of Action ................................................................. 29 5. Splitting a Single Cause of Action and its Effects............................................... 30 6. Joinder and Misjoinder of Causes of Action..................................................... 30 C. Parties to Civil Actions ................................ 31 1. Real Parties in Interest; Indispensable Parties; Representatives as Parties; Necessary Parties; Indigent Parties; Alternative Defendants ....................... 32 2. Compulsory and Permissive Joinder of Parties ..................................................... 34 3. Misjoinder and Non-Joinder of Parties ................................................................. 35 4. Class Suits .............................................. 35 5. Suits Against Entities Without Juridical Personality ............................................. 36 6. Effect of Death of Party Litigant ....... 36 7. Distinction between Real Party in Interest and locus standi......................... 38 D. Venue .............................................................. 38 1. Venue v. Jurisdiction ............................ 38 2. Venue of real actions............................ 39 3. Venue of Personal Actions ................. 39 4. Venue of Actions Against NonResidents................................................ 39

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

GENERAL PRINCIPLES IN REMEDIAL LAW ......................................................................... 2 A. Nature, Basis and Source of Remedial Law 2 1. Nature ....................................................... 2 2. Supreme Court and Law as Specific Source ....................................................... 2 B. Rule-Making Power of the Supreme Court 3 1. Nature and Scope .................................... 3 2. Methodology ............................................ 3 3. Limitations on the Rule-Making Power of the Supreme Court ............................ 4 4. Power of SC to Amend and Suspend Procedural Rules ..................................... 4 II. JURISDICTION OF COURTS.......................... 6 A. Nature of Philippine Courts ......................... 6 1. Meaning of a Court ................................. 6 B. Meaning of Jurisdiction in Various Contexts 7 1. Subject Matter Jurisdiction of a Court . 7 2. Jurisdiction over the Person of a Party 7 3. Jurisdiction over the Issues.................... 8 4. Jurisdiction over the Res ......................... 8 C. General Principles on Subject Matter Jurisdiction ....................................................... 9 1. Jurisdiction v. the Exercise of Jurisdiction ............................................... 9 2. Error of Jurisdiction as Distinguished from Error of Judgment ........................ 9 3. How Jurisdiction is Conferred and Determined ............................................10 4. Doctrine of Adherence of Jurisdiction .................................................................11 5. Objections to Jurisdiction over the Subject Matter .......................................11 6. Effect of Estoppel on Objections to Jurisdiction .............................................11 7. Other Principles.....................................12 D. Courts according to Subject Matter Jurisdiction in General ................................. 12 1. According to Subject Matter per se......12 2. According to Creation ..........................13 3. According to Record-Keeping ............14 4. Principle of Judicial Hierarchy ............15 5. Doctrine of Non-Interference or Doctrine of Judicial Stability ...............15 E. Jurisdiction of Specific Courts ................... 15 1. Supreme Court.......................................15 2. Court of Appeals ...................................17 3. Sandiganbayan .......................................17 4. Regional Trial Courts............................19 5. Family Courts.........................................21 i

REMEDIAL LAW

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5. When the Rules on Venue Do Not Apply ......................................................40 6. Effects of Stipulations on Venue .......40 Rules on Pleadings ....................................... 41 1. Kinds of Pleadings ................................41 2. Pleadings Allowed under The 2016 Revised Rules of Procedure for Small Claims Cases and The 1991 Revised Rule on Summary Procedure ..............46 3. Parts of a Pleading.................................47 4. Allegations in a Pleading ......................50 5. Effect of Failure to Plead.....................53 6. Default ....................................................53 Filing and Service of Pleadings, Judgments, Final Orders and Resolutions ..................... 56 1. Payment of Docket Fees ......................56 2. Filing v. Service of Pleadings...............56 3. Periods of Filing of Pleadings .............57 4. Manner of Filing ....................................57 5. Modes of Service ...................................58 Amendment ................................................... 60 1. Amendments as a Matter of Right .....60 2. Amendments by Leave of Court ........60 3. Formal Amendments ............................61 4. Amendments to Conform to or Authorize Presentation of Evidence .61 5. Supplemental Pleadings ........................61 6. Effect of Amended Pleading ...............62 Summons ....................................................... 62 1. Nature and Purpose of Summons in Relation to Actions in personam, in rem, and quasi in rem ......................................63 2. Voluntary Appearance ..........................63 3. Personal Service .....................................64 4. Substituted Service ................................64 5. Constructive Service (by Publication) 65 6. Extraterritorial Service of Summons, When Allowed.......................................66 7. Service upon Prisoners and Minors ...66 8. Proof of Service .....................................67 Motions .......................................................... 68 1. Motions in general.................................68 2. Motion for Bill of Particulars ..............70 3. Motion to Dismiss ................................71 Dismissal of Actions .................................... 78 1. Dismissal upon Notice by the Plaintiff; Two Dismissal Rule .............................78 2. Dismissal upon Motion of Plaintiff; Effect on Existing Counterclaim .......79 3. Dismissal Due to Fault of the Plaintiff .................................................................79 4. Dismissal of Counterclaim, CrossClaim, or Third-Party Complaint .......80 Pre-trial ........................................................... 80 1. Concept of Pre-Trial .............................80

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2. Nature and Purpose ............................. 80 3. Notice of Pre-Trial ............................... 81 4. Appearance of Parties; Effect of Failure to Appear ............................................... 81 5. Pre-Trial Brief; Effect of Failure to File ................................................................. 82 6. Distinction between Pre-Trial in a Civil Case and Pre-Trial in a Criminal Case82 Intervention ................................................... 85 1. Requisites for intervention .................. 85 2. Time to Intervene ................................. 85 3. Remedy for the Denial of the Motion to Intervene ........................................... 85 Subpoena ........................................................ 86 1. Subpoena duces tecum ........................ 87 2. Subpoena ad testificandum ................. 87 3. Service of Subpoena ............................. 87 4. Compelling Attendance of Witnesses; Contempt............................................... 87 5. Quashing of Subpoena ........................ 88 Modes of Discovery ..................................... 88 1. Deposition Pending Action; Deposition before Action or Pending Appeal ..... 88 2. Written Interrogatories to Adverse Parties ..................................................... 93 3. Request for Admission ........................ 94 4. Production or Inspection of Documents or Things ......................... 95 5. Physical and Mental Examination of Persons................................................... 96 Trial ................................................................. 98 1. Adjournment and Postponements ..... 98 2. Requisites of Motion to Postpone Trial ................................................................. 98 3. Agreed Statement of Facts .................. 99 4. Order of Trial; Reversal of Order ...... 99 5. Consolidation or Severance of Hearing or Trial ................................................... 99 6. Delegation of Reception of Evidence ............................................................... 100 7. Trial by Commissioners ..................... 100 Demurrer to Evidence ............................... 102 1. Grounds ............................................... 102 2. Effect of Denial .................................. 102 3. Effect of Grant ................................... 102 4. Waiver of Right to Present Evidence ............................................................... 103 5. Demurrer to Evidence in a Civil Case v. Demurrer to Evidence in a Criminal Case ...................................................... 103 Judgments and Final Orders ..................... 104 1. Judgment Without Trial..................... 104 2. Contents of a Judgment..................... 105 3. Memorandum Decision ..................... 105 4. Judgment on the Pleadings ............... 106

REMEDIAL LAW

5. Summary Judgments .......................... 107 6. Judgment on the Pleadings v. Summary Judgment ............................................. 108 7. Rendition of Judgments and Final Orders .................................................. 108 8. Entry of Judgment and Final Order 109 R. Post-Judgment Remedies .......................... 109 1. Motion for New Trial or Reconsideration ................................. 109 2. Appeals................................................. 112 3. Annulment of Judgments or Final Orders and Resolutions .................... 134 4. Collateral Attack of Judgments ........ 136 S. Execution, Satisfaction and Effect of Judgments .................................................... 137 1. Difference between Finality of Judgment for Purposes of Appeal; for Purposes of Execution ..................... 137 2. When Execution Shall Issue ............. 138 3. How a Judgment is Executed ........... 141 4. Properties Exempt from Execution147 5. Proceedings Where Property Claimed by Third Persons................................ 148 6. Rules on Redemption ........................ 150 7. Examination of Judgment Obligor When Judgment is Unsatisfied ........ 152 8. Examination of Obligor of Judgment Obligor ................................................ 153 9. Effect of Judgment or Final Orders 153 10. Enforcement and Effect of Foreign Judgment or Final Orders ................ 155 IV. PROVISIONAL REMEDIES ........................ 157 A. General Matters .......................................... 157 1. Nature of Provisional Remedies ...... 157 2. Jurisdiction over Provisional Remedies .............................................................. 157 B. Preliminary Attachment ............................ 158 1. Grounds for issuance ........................ 158 2. Requisites for Issuance ...................... 159 3. Issuance and Contents of Order of Attachment; Affidavit and Bond .... 159 4. Rule on Prior or Contemporaneous Service of Summons ......................... 160 5. Manner of Attaching Real and Personal Property; When Property Attached is Claimed by Third Persons ................ 160 6. Discharge of Attachment and CounterBond .................................................... 162 7. Satisfaction of Judgment Out of Property Attached ............................. 163 C. Preliminary Injunction ............................... 164 1. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order (TRO) ................. 164 2. Requisites ............................................. 164

3. Kinds of Injunction ............................ 165 4. When Writ May be Issued ................. 166 5. Grounds for Issuance of Preliminary Injunction ............................................ 166 6. Grounds for Objection to, or for the Dissolution of Injunction or Restraining Order............................... 167 7. Duration of TRO................................ 167 8. In relation to R.A. 8975; Ban on Issuance of TRO or Writ of Injunction in Cases involving Government Infrastructure Projects....................... 168 9. Rule on Prior or Contemporaneous Service of Summons in Relation to Attachment.......................................... 168 D. Receivership ................................................. 169 1. Cases When Receiver May be Appointed/Requisites ....................... 169 2. Requirement before Issuance of an Order .................................................... 170 3. General Powers of a Receiver .......... 171 4. Two Kinds of Bonds.......................... 171 5. Termination of Receivership ............ 172 E. Replevin ........................................................ 173 1. When Writ May be Issued ................. 173 2. Requisites ............................................. 174 3. Affidavit and Bond; Redelivery Bond ............................................................... 174 4. Sheriff’s Duty in the Implementation of the Writ; When Property is Claimed by Third Party .......................................... 174 V. SPECIAL CIVIL ACTIONS ........................... 177 A. General Matters ........................................... 177 1. Nature of Special Civil Actions ........ 177 2. Ordinary Civil Actions v. Special Civil Actions ................................................. 177 3. Jurisdiction and Venue....................... 177 B. Interpleader .................................................. 179 1. Requisites for Interpleader ................ 179 2. When to File ........................................ 180 C. Declaratory Reliefs and Similar Remedies 181 1. Who May File the Action .................. 181 2. Requisites of an Action for Declaratory Relief .................................................... 181 3. When Court May Refuse to Make Judicial Declaration ............................ 182 4. Conversion to Ordinary Action ....... 182 5. Proceedings Considered as Similar Remedies.............................................. 182 D. Review of Judgments and Final Orders or Resolutions of the COMELEC and COA 184 1. Application of Rule 65 under Rule 64 ............................................................... 184 iii

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2. Distinction in the Application of Rule 65 to Judgments of the COMELEC and COA and the Application of Rule 65 to Other Tribunals, Persons and Officers................................................ 185 Certiorari, Prohibition, Mandamus.......... 186 1. Definitions and Distinctions ............ 186 2. Requisites ............................................. 188 3. When petition for Certiorari, Prohibition, and Mandamus is proper .............................................................. 189 4. Injunctive Relief ................................. 189 5. Exceptions to Filing of Motion for Reconsideration before Filing Petition .............................................................. 190 6. Reliefs Petitioner is Entitled to ........ 190 7. Actions/Omissions of MTC/RTC in Election Cases .................................... 191 8. When and Where to File Petition .... 191 9. Effects of Filing of an Unmeritorious Petition ................................................ 192 Quo Warranto ............................................. 192 1. Distinguished from Quo Warranto in the Omnibus Election Code................... 193 2. When Government May Commence an Action against Individuals ................ 194 3. When an Individual May Commence an Action .................................................. 195 4. Judgment in Quo Warranto Action ... 195 5. Rights of a Person Adjudged Entitled to Public Office.................................. 195 Expropriation .............................................. 196 1. Matters to Allege in Complaint for Expropriation ..................................... 196 2. Two Stages in Every Action for Expropriation ..................................... 197 3. When Plaintiff can Immediately Enter into Possession of Real Property, in Relation to R.A. 8974........................ 197 4. New System of Immediate Payment of Initial Just Compensation ................. 199 5. Defenses and Objections .................. 199 6. Order of Expropriation..................... 200 7. Ascertainment of Just Compensation .............................................................. 200 8. Appointment of Commissioners; Commissioner’s report; Court Action upon Commissioner’s report ........... 201 9. Rights of Plaintiff upon Judgment and Payment ............................................... 202 10. Effect of Entry of Judgment ............ 202 Foreclosure of Real Estate Mortgage ...... 203 1. Judgment on Foreclosure for Payment or Sale .................................................. 203 2. Sale of Mortgaged Property; Effect 204

3. Disposition of Proceeds of Sale ....... 204 4. Deficiency Judgment .......................... 204 5. Judicial Foreclosure v. Extrajudicial Foreclosure.......................................... 205 6. Equity of Redemption v. Right of Redemption ......................................... 205 I. Partition ........................................................ 206 1. Who May File Complaint; Who Should be Made Defendants ......................... 207 2. Matters to Allege in the Complaint for Partition ............................................... 207 3. Two Stages in Every Action for Partition ............................................... 207 4. Order of Partition and Partition by Agreement ........................................... 208 5. Partition by Commissioners; Appointment of Commissioners, Commissioner’s Report; Court Action upon Commissioner’s Report .......... 208 6. Judgment and Its Effects................... 209 7. Partition of Personal Property .......... 209 8. Prescription of action ......................... 209 J. Forcible Entry and Unlawful Detainer.... 210 1. Definitions and Distinctions ............. 210 2. Distinguished from Accion Publiciana and Accion Reivindicatoria .............. 210 3. How to Determine Jurisdiction in Accion Publiciana, Accion Reivindicatoria and Accion Interdictal ............................................................... 211 4. Who May Institute the Action and When; Against Whom the Action May be Maintained ..................................... 211 5. Pleadings Allowed .............................. 211 6. Action on the Complaint ................... 212 7. When Demand is Necessary ............. 213 8. Preliminary Injunction and Preliminary Mandatory Injunction........................ 213 9. Resolving the Defense of Ownership ............................................................... 214 10. How to Stay Immediate Execution of Judgment ............................................. 215 K. Contempt ..................................................... 216 1. Kinds of contempt ............................. 216 2. Purpose and Nature of Each ............ 217 3. Remedy against Direct Contempt; Penalty .................................................. 217 4. Remedy against Indirect Contempt; Penalty .................................................. 217 5. How Contempt Proceedings are Commenced ........................................ 218 6. Acts Deemed Punishable as Indirect Contempt............................................. 218 7. When Imprisonment Shall be Imposed ............................................................... 219 iv

REMEDIAL LAW

8. Contempt against Quasi-Judicial Bodies .............................................................. 219

H. Actions by and against Executors and Administrators ............................................. 245 1. Actions by and against Executors .... 245 2. Recovery of Property Concealed, Embezzled or Fraudulently Conveyed ............................................................... 245 3. Sales, Mortgages, and Other Encumbrances .................................... 246 I. Payment of Debts of Estate ...................... 248 J. Distribution and Partition ......................... 251 1. Liquidation ........................................... 251 2. Project of Partition ............................. 252 3. Remedy of an Heir Entitled to Residue but Not Given His Share .................. 252 4. Instances When Probate Court May Issue Writ of Execution .................... 253 K. Trustees ........................................................ 256 1. Distinguished From Executor/Administrator ................... 256 2. Conditions of the Bond ..................... 257 3. Procedural Requisites for the Removal and Resignation of a Trustee ........... 257 4. Grounds for Removal and Resignation of a Trustee ......................................... 257 5. Extent of Authority of Trustee ........ 257 L. Escheat.......................................................... 258 1. When to File ........................................ 258 2. Requisites for Filing of Petition ....... 259 3. Remedy of Respondent against Petition; Period for Filing a Claim .................. 259 M. Guardianship ............................................... 260 1. Guardianship of Incompetent Persons Not Minors.......................................... 260 2. Conditions of the Bond of the Guardian .............................................. 262 3. Rule on Guardianship of Minors [A.M. NO. 03-02-05-SC] .............................. 262 N. Writ of Habeas Corpus .............................. 265 1. Contents of the Petition .................... 268 2. Contents of the Return ...................... 268 3. Distinguish Peremptory Writ from Preliminary Citation ........................... 269 4. When Not Proper or Applicable...... 269 5. When Writ Disallowed or Discharged ............................................................... 269 6. Distinguished From Writ of Amparo and Habeas Data .................................. 270 7. Rules on Custody of Minors and Writ of Habeas Corpus In Relation To Custody of Minors [A.M. No. 03-04-04SC] ........................................................ 271 O. Writ of Amparo [A.M. 07-9-12-SC] ........... 274 1. Coverage ............................................... 274 2. Distinguish From Habeas Corpus and Habeas Data ........................................ 276

SPECIAL PROCEEDINGS ....................... 220 VI. SPECIAL PROCEEDINGS ........................... 221 A. Settlement of Estate of Deceased Persons 221 1. Jurisdiction .......................................... 221 2. Venue ................................................... 222 3. Extent of Jurisdiction of Probate Court .............................................................. 222 4. Powers and Duties of a Probate Court .............................................................. 223 B. Summary Settlement of Estates ............... 224 1. Extrajudicial Settlement of Estates . 224 2. Two-Year Prescriptive Period .......... 225 3. Summary Settlement of Estates of Small Value ......................................... 225 4. Remedies of Aggrieved Parties after Extrajudicial Settlement of Estate .. 226 C. Production and Probate of Will ............... 228 1. Nature of Probate Proceedings........ 228 D. Allowance or Disallowance of Will ......... 229 1. Who May Petition For Probate; Persons Entitled To Notice ............................ 229 2. Grounds for Disallowing a Will....... 231 3. Effects of Probate .............................. 231 E. Reprobate..................................................... 232 1. Requisites before a Will Proved Abroad Would be Allowed in Philippines ... 232 2. Effect of Reprobate ........................... 232 F. Letters Testamentary and of Administration 233 1. When and to Whom Letters of Administration are Granted ............. 233 2. Order of Preference ........................... 234 3. Opposition to Issuance of Letters Testamentary; Simultaneous Filing of Petition for Administration.............. 235 4. Powers and Duties of Executors and Administrators; Restrictions on the Powers ................................................. 236 5. Appointment of Special Administrator .............................................................. 239 6. Revocation, Death, Resignation and Removal of Executors and Administrators ................................... 240 G. Claims against the Estate........................... 242 1. Time within Which Claims shall be Filed; Exceptions ............................... 242 2. Statute of Non-Claims ....................... 242 3. Claim of Executor or Administrator against an Estate ................................ 244 4. How to File For a Claim ................... 244 v

REMEDIAL LAW

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Amparo v. Search Warrant ................. 276 Who May File...................................... 276 Contents of Return ............................ 277 Effect of Failure to File Return ....... 278 Omnibus Waiver Rule ....................... 278 Procedure for Hearing....................... 278 Institution of Separate Action .......... 279 Effect of Filing a Criminal Action... 279 Consolidation ...................................... 279 Interim Reliefs Available To Petitioner and Respondent ................................. 279 13. Quantum of Proof in Application for Issuance of Writ of Amparo.............. 280 Writ of Habeas Data [A.M. No. 08-1-16-SC] 281 1. Scope of the Writ ............................... 281 2. Availability of Writ ............................. 282 3. Distinguish from Habeas Corpus and Amparo ................................................. 282 4. Who May File the Petition ................ 282 5. Contents of the Petition .................... 282 6. Contents of the Return ..................... 283 7. Instances When Defenses May Be Heard In Chambers ........................... 283 8. Consolidation ...................................... 284 9. Effect of Filing Criminal Action...... 284 10. Institution of Separate Action .......... 284 11. Quantum of Proof in Application for Issuance of Writ of Habeas Data ..... 284 Change of Name ......................................... 293 1. Distinctions between the Rules [103, 108, R.A. 9048]; Administrative Corrections ......................................... 293 2. Grounds for Change of Name ......... 294 Absentees ..................................................... 296 1. Purpose of the Rule ........................... 296 2. Who May File; When to File ............ 296 Cancellation or Correction of Entries in the Civil Registry ............................................... 297 1. Entries Subject To Cancellation or Correction under Rule 108............... 297 2. R.A. 9048, as amended by R.A. 10172 .............................................................. 298 3. R.A. 9048 vis-à-vis Rule 103 and Rule 108 ........................................................ 300 Rule 109: Appeals in Special Proceedings 301

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VII. CRIMINAL PROCEDURE ............................ 303 A. General Matters .......................................... 303 1. Jurisdiction over Subject Matter and Jurisdiction over Person of the Accused Distinguished; Territorial Jurisdiction .......................................... 303 vi

2. Requisites for Exercise of Criminal Jurisdiction .......................................... 304 3. Jurisdiction of Criminal Courts ........ 305 4. When Injunction May Be Issued To Restrain Criminal Prosecution ......... 307 Prosecution of Offenses ............................ 308 1. Criminal Actions; How Instituted.... 308 2. Who May File; Crimes That Cannot be Prosecuted De Officio .......................... 308 3. Criminal Actions, When Enjoined... 311 4. Control of Prosecution ...................... 311 5. Sufficiency of Complaint or Information ......................................... 313 6. Designation of Offense ..................... 315 7. Cause of the Accusation .................... 315 8. Duplicity of the Offense; Exception316 9. Amendment or Substitution of Complaint or Information ................ 316 10. Venue of Criminal Actions ............... 319 11. Intervention of Offended Party ....... 320 Prosecution of Civil Action....................... 321 1. Rule on Implied Institution of Civil Action with Criminal Action ............ 321 2. When Civil Action May Proceed Independently ..................................... 321 3. When Separate Civil Action Is Suspended ........................................... 321 4. Effect of Death of the Accused or Convict On Civil Action ................... 322 5. Prejudicial Question ........................... 322 6. Rule on Filing Fees in Civil Action Deemed Instituted With the Criminal Action................................................... 324 Preliminary Investigation ........................... 324 1. Nature of Right ................................... 324 2. Purposes of Preliminary Investigation ............................................................... 325 3. Who May Conduct Determination of Existence of Probable Cause ........... 325 4. Resolution of the Investigating Prosecutor ........................................... 327 5. Review .................................................. 327 6. When Warrant of Arrest May Issue. 328 7. Cases Not Requiring Preliminary Investigation nor Covered By the Rule on Summary Procedure..................... 329 8. Remedies of Accused If There Was No Preliminary Investigation .................. 330 Arrest ............................................................ 331 1. Arrest, How Made .............................. 331 2. Arrest without Warrant, When Lawful ............................................................... 331 3. Method of Arrest ................................ 334 4. Requisites of a Valid Warrant of Arrest ............................................................... 335

REMEDIAL LAW

F. Bail 337 1. Nature .................................................. 337 2. When a Matter of Right; Exceptions337 3. When a Matter of Discretion ........... 338 4. Hearing of Application for Bail in Capital Offenses................................. 339 5. Guidelines in Fixing Amount of Bail340 6. When Bail Not Required................... 340 7. Increase or Reduction of Bail........... 341 8. Forfeiture and Cancellation of Bail . 341 9. Application not a Bar to Objections on Illegal Arrest, Lack of or Irregular Preliminary Investigation.................. 342 10. Hold/Allow Departure Order and Bureau of Immigration Watchlist ... 342 G. Arraignment and Plea ................................ 343 1. Arraignment and Plea; How Made .. 343 2. When a Plea of Not Guilty Should Be Entered ................................................ 345 3. When Accused May Enter a Plea of Guilty to a Lesser Offense ............... 345 4. Accused Pleads Guilty to Capital Offense; What the Court Should Do .............................................................. 345 5. Searching Inquiry................................ 346 6. Improvident Plea of Guilty to a Capital Offense ................................................ 346 7. Grounds for Suspension of Arraignment........................................ 347 H. Motion to Quash ........................................ 348 1. Grounds ............................................... 349 2. Distinguish Motion to Quash from Demurrer to Evidence ...................... 351 3. Effects of Sustaining the Motion to Quash................................................... 352 4. Exception to the Rule that Sustaining the Motion is Not a Bar to another Prosecution ......................................... 353 5. Double Jeopardy................................. 353 6. Provisional Dismissal......................... 354 I. Pre-Trial ....................................................... 356 1. Matters to Be Considered During PreTrial ...................................................... 356 2. What the Court Should Do When Prosecution and Offended Party Agree to the Plea Offered by the Accused 357 3. Pre-Trial Agreement .......................... 357 4. Non-Appearance during Pre-Trial .. 357 5. Pre-Trial Order ................................... 357 6. Referral of Some Cases for CourtAnnexed Mediation and Judicial Dispute Resolution ............................ 358 J. Trial ............................................................... 358 1. Instances When Presence of Accused is Required by Law ................................ 358

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2. Requisites Before Trial Can be Suspended on Account of Absence of Witness................................................. 359 3. Trial in Absentia.................................. 359 4. Remedy When Accused is Not Brought to Trial within the Prescribed Period ............................................................... 360 5. Requisites for Discharge of Accused to Become a State Witness .................... 360 6. Effects of Discharge of Accused as State Witness ....................................... 361 7. Demurrer to Evidence ....................... 361 Judgment ...................................................... 363 1. Requisites of a Judgment ................... 363 2. Contents of Judgment ........................ 364 3. Promulgation of Judgment; Instances of Promulgation of Judgment in Absentia ............................................................... 365 4. When Does Judgment Become Final ............................................................... 366 New Trial or Reconsideration................... 367 1. Grounds for New Trial...................... 367 2. Grounds for Reconsideration ........... 367 3. Requisites Before a New Trial May be Granted on Ground of Newly Discovered Evidence......................... 367 4. Effects of Granting New Trial or Reconsideration .................................. 368 5. Application of the Neypes Doctrine in Criminal Cases .................................... 368 Appeal ........................................................... 369 1. Effect of an Appeal ............................ 369 2. Where to Appeal ................................. 369 3. How Appeal Taken ............................ 369 4. Effect of Appeal by Any of Several Accused................................................ 375 5. Grounds for Dismissal of Appeal .... 375 Search and Seizure ...................................... 376 1. Nature of Search Warrant ................. 376 2. Distinguish From Warrant of Arrest377 3. Application for Search Warrant; Where Filed ...................................................... 377 4. Probable Cause (in Search Warrants) ............................................................... 379 5. Personal Examination by Judge of the Applicant and Witnesses ................... 379 6. Particularity of Place to Be Searched and Things to Be Seized ................... 380 7. Personal Property to be Seized......... 381 8. Exceptions to the Search Warrant Requirement ........................................ 381 9. Remedies From Unlawful Search And Seizure .................................................. 385 Provisional Remedies ................................. 387 1. Nature ................................................... 387

REMEDIAL LAW

2. Kinds of Provisional Remedies........ 387 P. Revised Guidelines for Continuous Trial of Criminal Cases............................................. 388 Q. Rule on Cybercrime Warrants .................. 396

2. Requisites for Admissibility .............. 423 3. Categories of Object Evidence......... 424 4. Demonstrative Evidence ................... 424 5. View of an Object or Scene .............. 424 I. Documentary Evidence ............................. 425 1. Meaning of Documentary Evidence 425 2. Requisites for Admissibility .............. 425 3. Best Evidence Rule............................. 425 4. Parol Evidence Rule ........................... 427 5. Authentication and Proof of Documents .......................................... 429 J. Testimonial Evidence ................................. 432 1. Qualifications of a Witness ............... 432 2. Competency v. Credibility of a Witness ............................................................... 433 3. Disqualifications of Witnesses .......... 433 4. Examination of a Witness ................. 440 5. Rights and Obligations of a Witness443 6. Order of Examination of an Individual Witness................................................. 444 7. Leading and Misleading Questions .. 444 8. Methods of Impeaching an Adverse Party’s Witness.................................... 445 9. How the Witness is Impeached by Evidence of Inconsistent Statements (Laying the Predicate) ........................ 445 10. Evidence of the Good Character of a Witness................................................. 445 11. Admissions and Confessions ............ 446 12. Hearsay Rule ........................................ 450 13. Opinion Rule ....................................... 457 14. Character Evidence ............................ 458 K. Offer and Objection ................................... 460 1. Offer of Evidence............................... 460

EVIDENCE................................................ 402 VIII. EVIDENCE ............................................... 403 A. General Principles ...................................... 403 1. Concept of Evidence ......................... 403 2. Scope and Applicability of the Rules of Evidence.............................................. 403 3. Evidence in Civil Cases v. Evidence in Criminal Cases.................................... 403 4. Proof v. Evidence .............................. 405 5. Factum Probans v. Factum Probandum .............................................................. 405 6. Classes of Evidence According to Form .............................................................. 405 7. Cumulative and Corroborative Evidence.............................................. 405 8. Prima facie and Conclusive Evidence 406 9. Disputable and Conclusive Presumption ....................................... 406 10. Primary and Secondary Evidence .... 406 B. Admissibility of Evidence ......................... 408 1. Requisites for Admissibility .............. 408 2. Relevance of Evidence and Collateral Matters ................................................. 409 3. Multiple Admissibility ........................ 409 4. Conditional Admissibility.................. 409 5. Curative Admissibility ....................... 410 6. Direct and Circumstantial Evidence 410 7. Positive and Negative Evidence ...... 410 8. Competent and Credible Evidence . 410 C. Burden of Proof and Burden of Evidence 412 D. Presumptions .............................................. 413 1. Conclusive Presumptions ................. 413 2. Disputable Presumptions .................. 413 E. Liberal Construction of the Rules of Evidence....................................................... 416 F. Quantum of Evidence (Weight and Sufficiency of Evidence) ........................... 417 1. Proof beyond Reasonable Doubt .... 417 2. Preponderance of Evidence ............. 417 3. Substantial Evidence .......................... 417 4. Clear and Convincing Evidence ...... 417 G. Judicial Notice and Judicial Admissions . 418 1. What Need Not Be Proved .............. 418 2. Matters of Judicial Notice ................. 418 3. Judicial Admissions ............................ 420 4. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance . 422 H. Object (Real) Evidence.............................. 423 1. Meaning of Object Evidence ........... 423

SPECIAL RULES ...................................... 465 IX. Revised Rules on Summary Procedure ........... 466 A. Cases Covered by the Rule ........................ 466 B. Prohibited Pleadings and Motions ........... 466 C. Effect of failure to answer ......................... 467 D. Preliminary Conference and Appearances of Parties....................................................... 468 X. Rules of Procedure For Small Claims Cases .. 469 A. Scope and Applicability of the Rule......... 469 B. Commencement of Small Claims Action; Response ...................................................... 470 C. Prohibited Pleadings and Motions ........... 471 D. Appearances ................................................. 472 E. Hearing; Duty of the Judge ....................... 472 F. Finality of Judgment ................................... 472 XI. Rules of Procedure For Environmental Cases ................................................................................ 473 A. Scope and Applicability of the Rule......... 473 B. Civil Procedure ............................................ 474 viii

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1. Prohibition against Temporary Restraining Order and Preliminary Injunction............................................ 474 2. Pre-Trial Conference; Consent Decree .............................................................. 474 3. Prohibited Pleadings and Motions .. 475 4. Temporary Environmental Protection Order (TEPO) ................................... 475 5. Judgment and Execution; Reliefs in a Citizen Suit.......................................... 475 6. Permanent Environmental Protection Order; Writ of Continuing Mandamus .............................................................. 476 7. Strategic Lawsuit Against Public Participation (SLAPP)....................... 476 C. Special Civil Actions .................................. 477 1. Writ of Kalikasan ............................... 477 2. Prohibited Pleadings and Motions .. 477 3. Discovery Measures ........................... 477 4. Writ of Continuing Mandamus .......... 478 D. Criminal Procedure .................................... 479 1. Who May File...................................... 479 2. Institution of Criminal and Civil Action .............................................................. 479 3. Arrest Without Warrant, When Valid .............................................................. 479 4. Strategic Lawsuit Against Public Participation [SLAPP] ....................... 479 5. Procedure in the Custody and Disposition of Seized Items............. 479 6. Bail ........................................................ 480 7. Arraignment and Plea ........................ 480 8. Pre-trial................................................. 480 9. Subsidiary Liabilities .......................... 480 E. Evidence....................................................... 481 1. Precautionary Principle ..................... 481 2. Documentary Evidence..................... 481

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CIVIL PROCEDURE Remedial Law

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I. GENERAL PRINCIPLES IN REMEDIAL LAW

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instrumentality of Government VIII, Constitution]

A. Nature, Basis and Source of Remedial Law 1. Nature a. As Distinguished from Substantive Law Substantive law – Creates, defines, and regulates rights and duties concerning life, liberty, or property [Primicias v. Ocampo, G.R. No. L-6120 (1953)], the violation of which gives rise to a cause of action [Bustos v. Lucero, G.R. No. L-2068 (1948), cited in 1 Riano 25-26, 2014 Bantam Ed.] Remedial law – Prescribes the methods of enforcing those rights and obligations created by substantive law [Bustos v. Lucero, G.R. No. L-2068 (1948)]

b. Judicial Power as Basis and Source In the first place, there would be no theory and practice of “remedial law” in the Philippine legal system if our constitutional order did not include the concept of “judicial power” per se. This concept, of course -- as vested in a basic branch of government independent of the two other basic branches, arising from the root democratic philosophy of separation of the powers of governance in a democracy -- antedates all Philippine Constitutions because it is of American origin. But it has been defined for the Philippine legal system, for the first time, in Sec. 1, Article VIII, 1987 Constitution [Prof. Avena] Judicial Power includes the duty of the courts of justice 1. To settle actual controversies involving rights, which are legally demandable and enforceable; and 2. To determine WON there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or

[Sec. 1, Art.

The second paragraph in the foregoing definition of judicial power in Sec. 1, Art. VIII, 1987 Constitution is an innovation that “expanded” the previous version in the 1973 and 1935 Constitutions, which was confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and enforceable [Araullo v. Aquino, G.R. No. 209287 (2014)] Prospectivity/Retroactivity General rule: Rules of procedure may be modified at any time to become effective at once, so long as the change does not affect vested rights. Moreover, there are no vested rights to rules of procedure [Zulueta v. Asia Brewery, G.R. No. 138137 (2001)] Note: Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage, there being no vested rights in the rules of procedure. Amendments to procedural rules are procedural or remedial in character as they do not create new or remove vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing [Fil-Estate Properties, Inc. v. HomenaValencia, G.R. No. 173942 (2008)] Exceptions: Procedural rules do not apply to pending actions 1. where the statute itself or by necessary implication provides that pending actions are excepted from its operation; 2. if applying the rule to pending actions would impair vested rights; 3. when to do so would not be feasible or would work injustice; 4. if doing so would involve intricate problems of due process or impair the independence of the courts. [Tan, Jr. v. CA, G.R. No. 136368 (2002), citing Agpalo 269-272, 1986 Ed.]

2. Supreme Court and Law as

Specific Source

a. Supreme Court

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The Supreme Court creates procedural law on the basis of its rule-making power as embodied in Sec. 5(5), Art. VIII of the Constitution, to

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promulgate rules on “…pleading, practice and procedure in all courts…”

b. Congress The Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. The power to promulgate rules is no longer shared by the Court with Congress, more so with the executive [Echegaray v. Secretary of Justice, G.R. No. 132601 (1999)]

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B. Rule-Making Power of the Supreme Court 1. Nature and Scope 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 b. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by the Supreme Court. 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)]

2. Methodology a. Rules of Court The Rules of Court (ROC) is the main set of rules of general application [Sec. 2, Rule 1] to civil and criminal actions and special proceedings [Sec. 3, Rule 1], administrative powers and duties of court personnel, as well as the discipline of members of the judiciary [Rule 140], the bar [Rule 139], and student practice [Rule 138-A]. The ROC 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] SCOPE OF APPLICATION The ROC shall apply in all the courts, except as otherwise provided by the SC [Sec. 2, Rule 1]. It shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. [Sec. 3, Rule 1]

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It does not apply to: 1. Election cases 2. Land registration cases 3. Cadastral cases 4. Naturalization cases 5. Insolvency proceedings, and 6. Other cases not provided for in the ROC

• • • •

Except by analogy or in a suppletory character and whenever practicable and convenient [Sec. 4, Rule 1] It will apply to certain proceedings if so provided by law, e.g., with respect to the power to issue writs of injunction and to punish for contempt by the Land Transportation and Franchising Board [Sec. 19(4) and (5), Chapter 5, Title XV, Book IV, Administrative Code] The constitutional faculty of the Court to promulgate rules 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)]

b. Other Issuances Examples would include 1. Rules on specific details of procedure, such as the rule on • Service of summons on foreign private juridical entities [A.M. No. 11-3-6-SC] • Electronic filing [A.M. No. 10-3-7-SC] • Guidelines on pre-trial, mediation and discovery [A.M. No. 03-1-09-SC] • Suspension of payment of docket fee [A.M. No. 04-2-04-SC] • Certificate of non-forum shopping [Revised Circular No. 28-91, Administrative Circular No. 04-94, A.M. No. 00-2-10-SC] 2.

Entire bodies of procedural rules for the enforcement and protection of specific substantive rights • Special Rules of Court on Alternative Dispute Resolution [A.M. No. 07-11-08-SC] • Rules on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages [A.M. No. 02-11-10-SC] • Rule on DNA Evidence (A.M. No. 06-11-5SC]

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Rule on the Writ of Amparo (A.M. 07-9-12SC) Rule on the Writ of Habeas Data [A.M. 081-16-SC] Rules of Procedure for Environmental Cases [A.M. No. 09-6-8-SC] Judicial Affidavit Rule [A.M. No. 12-8-8-SC] Rules of Procedure on Corporate Rehabilitation [A.M. No. 00-08-10-SC]

c. Jurisprudence The SC’s rule-making power includes the power to create rules via jurisprudence. [see, e.g., Ching v. Subic Bay, G.R. No. 174353 (2014); Vidal v. Escueta, G.R. No. 156225 (2003)]

3. Limitations on the Rule-

Making Power of the Supreme Court

The rules shall 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]

4. Power of SC to Amend and

Suspend Procedural Rules

General rule 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)] Litigation is not a game of technicalities, but every case must be prosecuted in accordance with the prescribed rules of procedure to ensure an orderly and speedy administration of justice. Only for the most persuasive of reasons can such rules be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed [Novateknika v. PNB, G.R. No. 194104 (2013)]. Exception Apart from the rule-making power explicitly vested in it by the Constitution, the basis for the power of the

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Supreme Court to suspend its own rules is specifically provided in Sec. 5(g) of Rule 135 (which provision dates back to the 1964 and 1940 ROC). Said Section states that 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 except a particular case from its operations whenever the purposes of justice require it, cannot be questioned. Substantial rights must reign supreme over technicalities. The over-arching 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)]. Note: In De Guzman, a criminal case, the SC remanded the case for new trial even after entry of judgment of conviction, because the accused was deprived of the right to present evidences crucial to and on their face proving his innocence when his counsel adopted the wrong strategy of demurring to evidence despite denial of leave therefor.

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Court to suspend procedural rules [Cu-Unjieng v. CA, G.R. No. 142022 (2005)] 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)] The reasons which would warrant suspension of the Rules include: a. The existence of special and compelling circumstances b. The merits of the case c. A cause not entirely attributable to the fault or negligence of the party favored by the suspension d. A lack of any showing that the review sought is merely frivolous or dilatory, and e. The rights of the other party will not be unjustly prejudiced thereby [Sarmiento v. Zaratan, G.R. No. 167471 (2007)] f. Transcendental matters of life, liberty or state security [Mindanao Savings and Loan Association v. Vda. De Flores, G.R. No. 142022 (2005)]

Where strong considerations of substantive justice are manifest in the petition, the strict application of the rules of procedure may be relaxed, in the exercise of its equity jurisdiction. A rigid application of the rules of procedure will not be entertained if it will obstruct rather than serve the broader interests of justice in the light of the prevailing circumstances in the case under consideration [CMTC Int’l Marketing Corp. v. Bhagis Int’l Trading Corp., G.R. No. 170488 (2012)] Exception to exception Parties praying for the liberal interpretation of the rules must be able to hurdle that heavy burden of proving that they deserve an exceptional treatment. It was never the Court’s intent “to forge a bastion for erring litigants to violate the rules with impunity.” [Prieto v. Alpadi Development Corp., G.R. No. 191025 (2013)] Concomitant to a procedure adopting a liberal application of the rules should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules [Duremdes v. Duremdes, G.R. No. 138256 (2003)]. To relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure and the mere invocation of substantial justice is not a magical incantation that will automatically compel the Page 5 of 481

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II. JURISDICTION OF COURTS

1. Meaning of a Court

It is not a juridical person within the purview of Art. 44(1) of the Civil Code, which refers to “the State and its political subdivisions” (See Sec. 2(3), Introductory Provisions, Administrative Code: “Local Government refers to the political subdivisions established by or in accordance with the Constitution”)

A Philippine court forms part of the judicial department of the government of the Republic of the Philippines [Par. 1, Sec. 1, Art. VIII, Constitution].

Tribunal officially assembled under authority of law [1 Riano 65-66, 2014 Bantam Ed.]

A. Nature of Philippine Courts

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.]

a. The Supreme Court and Other Courts The judicial power shall be vested in one SC and in such lower courts as may be established by law [Par. 1, Sec. 1, Art. VIII, Constitution]. The SC is the one and only court that is created and vested with judicial power by the 1987 Constitution. All other courts, which are therefore lower in the legal and administrative hierarchy, are created and vested with judicial power only by virtue of law.

b. Court as Distinguished from the Judge Court A court is a juridical person, within the purview of Art. 44(2) of the Civil Code, which refers to “other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law.”

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Officer of such tribunal [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)]. In Carlos, the SC ruled that the disqualification under the People's Court Act of some or a majority of the members of the SC and their substitution by justices of the CA or judges of the CFI do not make the SC, as thus constituted, a new court in the eyes of the law. This objection is no more valid than that of a party in an ordinary action who protests that his case is heard by a SC which, by reason of disability of a majority of its regular members, is made up mostly of judges from outside. 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)]. The reason is the separate personality of the court from the judge, as described in the table above.

Judge A judge is a physical or natural person [1 Riano 66, 2014 Bantam Ed.]

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B. Meaning of Jurisdiction in Various Contexts 1. Subject Matter Jurisdiction

of a Court

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. L-48754 (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 (e.g., Regional Trial Courts as compared to Shari’a courts) and what powers it can exercise in relation thereto (e.g., issuance of provisional remedies) [Prof. Avena]. Specifically: With respect to the Supreme Court, it is the plenary judicial power vested in it by the Constitution [Sec. 5, Article VIII, Constitution], of which it cannot be deprived by Congress, pursuant to Sec. 2, Article VIII, Constitution [Prof. Avena]. • It includes the power of judicial review, which is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution [Garcia v. Executive Secretary, G.R. No. 157584 (2009)] Jurisdiction a. is the power and authority of the court to hear, try, and decide a case [1 Riano 67, 2014 Bantam Ed., citing Cuenca v. PCGG, G.R. Nos. 159104-05 (2007); Asia International Auctioneers, Inc. v. Parayno, G.R. No. 163445 (2007)] b. has also been referred to as the power or capacity given by the law to a court or tribunal to entertain, hear, and determine certain controversies [1 Riano 67, 2014 Bantam Ed., citing De la Cruz v. CA, G.R. No. 139442 (2006)] With respect to any other court, it is the judicial power vested in that particular kind of court by the pertinent law. For example, the jurisdiction of the Shari’a Circuit Court is the judicial power that is vested in it by Art. 155 of P.D. 1083 [Prof. Avena]

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Three consequences automatically and inevitably flow from the judicial power conferred by law on a court: a. subject-matter jurisdiction exists only when and because it is prescribed by law b. by the very essence of judicial power, subjectmatter jurisdiction can be vested by law only upon a court c. therefore, a body that purports to be a court is not a court if there is no law that has vested it with judicial power [Prof. Avena] For example The Maeng Tribal Court is not a court because there is no law that has vested it with judicial power [see Badua v. Cordillera Bodong, G.R. No. 92649 (1991)]. The Civil Service Commission may have been vested with the power to settle actual controversies under E.O. 292, but it is not a court because it is not part of the judicial department of the government [Prof. Avena]

2. Jurisdiction over the Person

of a Party

Subject matter jurisdiction

Refers to the judicial power of a specific type of court over certain kinds of action as provided for and defined by law [Prof. Avena]

None of the parties to the litigation can enlarge or diminish it or dictate when it shall attach or when it shall be removed. That is a matter of legislative enactment which none but the legislature may change [Manila Railroad Co. v. Attorney-General, G.R. No. 6287 (1911)]

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Jurisdiction over the person Refers to jurisdiction over the person of a party (in an action that has been filed with a specific court that has subject matter jurisdiction over such action) that must be acquired by that specific court through modes provided in procedural rules [Prof. Avena] May be conferred by consent, expressly or impliedly given, or it may, by an objection, be prevented from attaching or removed after it has attached [Manila Railroad Co. v. Attorney-General, G.R. No. 6287 (1911)]

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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, thru the voluntary appearance of that person before the court. Thus, judgment may be directed against one who, although not a formal party in the case, has assumed or participated in the defense [Rodriguez v. Alikpala, G.R. No. L-38314 (1974)]

a. How jurisdiction over the plaintiff is acquired Courts acquire jurisdiction over a party plaintiff upon the filing of the complaint [Regner v. Logarta, G.R. No. 168747 (2007)] The plaintiff, having brought the action, of necessity submitted itself to the jurisdiction of the court [Manila Railroad Co. v. Attorney-General, G.R. No. 6287 (1911)]

b. How jurisdiction over the defendant is acquired 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)] Jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case only in an action in personam. It is not a prerequisite in an action in rem or quasi in rem, provided that the court acquires jurisdiction over the res [Alba v. CA, G.R. No. 164041 (2005)] An objection to jurisdiction over the person of the defendant may be raised as a ground in a Motion to Dismiss [Sec. 1(a), Rule 16] or as an affirmative defense in an Answer [Sec. 6, Rule 16] However, if not raised in such Motion or Answer, it is deemed waived. It is not one of those defenses not deemed waived under Sec. 1, Rule 9 [Boston Equity Resources, Inc. v. CA, G.R. No. 173946 (2013)]

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3. Jurisdiction over the Issues 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 100, 2014 Bantam Ed., citing Black’s Law Dictionary 745, 5th Ed.] The SC had occasion to note that in some instances it has been held that the court must also have jurisdiction over the issues – that is, the issue being tried and decided by the court be within the issues raised in the pleadings [Reyes v. Diaz, G.R. No. L48754 (1941)] 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. L-48754 (1941)] b. Stipulation of the parties as when, in the pre-trial, the parties enter into stipulations of facts or enter into agreement simplifying the issues of the case [Sec. 2, 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 or issues not raised by the pleadings [Sec. 5, Rule 10] [1 Riano 100-101, 2014 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)]

4. Jurisdiction over the Res “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 104, 2014 Bantam Ed., citing Black’s Law Dictionary 1172, 5th Ed.] 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.]

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Jurisdiction over the res may be 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 of over the res) [Biaco v. Philippine Countryside Rural Bank, G.R. No. 161417 (2007); El Banco Español-Filipino v. Palanca, G.R. No. 11390 (1918)] 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. There is potential custody when, from the nature of the action brought, the power of the court over the property is impliedly recognized by law [Marcos, Jr. v. Republic, G.R. No. 189434 (2014); Perkins v. Dizon [G.R. No. 46631 (1939)] In a quasi in rem action, jurisdiction over the person of the nonresident defendant is not necessary and service of summons is required only for the purpose of complying with the requirement of due process. An action quasi in rem is an action between parties where the direct object is to reach and dispose of property owned by them, or of some interest therein [De Midgely v. Ferandos, G.R. No. L-34314 (1975)] The CA, not the CTA, has jurisdiction over a case alleging non-compliance with the pertinent provisions of the Local Government Code on tax delinquency sale. A plain reading of Magpile's petition before the RTC would show that he did not assail the legality or validity and reasonableness or correctness of the real property tax assessment and collection. What he is questioning is the alleged denial of due process in the levying of his property [Salva v. Magpile, G.R. No. 220440 (2017)]

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C. General Principles on Subject Matter Jurisdiction Distinguished from venue The question of venue does not relate to jurisdiction of the court over the subject matter, it simply granting to the defendant certain rights and privileges as against the plaintiff relative to the place of trial, which rights and privileges he might waive expressly or by implication [Manila Railroad Co. v. Attorney-General, G.R. No. 6287 (1911)]

1. Jurisdiction v. the Exercise

of Jurisdiction

Jurisdiction refers to the power or authority of the court to hear and decide a particular case or controversy [Arranza v. BF Homes, G.R. No. 131683 (2000)] while the exercise of this power or authority is the exercise of jurisdiction [1 Riano 72, 2014 Bantam Ed.] Jurisdiction is not the same as the exercise of jurisdiction. As distinguished from the exercise of jurisdiction, jurisdiction is the authority to decide a cause, and not the decision rendered therein. Where there is jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is but an exercise of the jurisdiction. And the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal [Tolentino v. Leviste, G.R. No. 156118 (2004)]

2. Error of Jurisdiction as

Distinguished from Error of Judgment

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

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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

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

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

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

3. 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)] 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 a. [De la Rosa v. Roldan, G.R. No. 133882 (2006)] d. Conferred by administrative policy of any court [Arranza v. B.F. Homes, Inc., G.R. No. 131683 (2000)]

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Conferred by a court’s unilateral assumption of jurisdiction [Tolentino v. Social Security Commission, G.R. No. L-28870 (1985)] f. Conferred by consent or waiver [Cadimas v, Carrion, G.R. No. 180394 (2008)] [1 Riano 75-76, 2014 Bantam Ed.] e.

Generally, the jurisdiction of a court is determined by the statute in force at the commencement of the action, unless such statute provides for its retroactive application [Baritua v. Mercader, G.R. No. 136048 (2001)] Once vested by the allegations in the complaint, jurisdiction also remains vested irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein [City of Dumaguete v. PPA, G.R. No. 168973 (2011)] 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)] Note: The MTCC does not lose jurisdiction over ejectment cases by mere allegation of a tenancy relationship. However, if after hearing, tenancy is in fact shown to be the real issue, the court should dismiss the case for lack of jurisdiction [Hilado v. Chavez, G.R. No. 134742 (2004)] Doctrine of primary jurisdiction 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

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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)]

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b.

4. Doctrine of Adherence of

Jurisdiction

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)] 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)] As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, except 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)]]

5. Objections to Jurisdiction

over the Subject Matter

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] The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where the fact is developed. The court has a clearly recognized right to determine its own jurisdiction in any proceeding [Fabian v. Desierto, G.R. No. 129742 (1998)] 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)] The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer because lack of jurisdiction over subject matter is a ground for a motion to dismiss under Sec. 1(b), Rule 16 [1 Riano 88, 2014 Bantam Ed.] If no motion to dismiss is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer [Sec. 6, Rule 16] When the court dismisses the complaint for lack of jurisdiction over subject matter, it is submitted that the court should not remand the case to another court with the proper jurisdiction. Its only has authority to dismiss and not to make any other order [1 Riano 89, 2014 Bantam Ed.]

6. Effect of Estoppel on

Objections to Jurisdiction

General rule: 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)]

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Exception: Tijam v. Sibonghanoy [G.R. No. L-21450 (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 which it has actively participated [Francel Realty Corp. v. Sycip, G.R. No. 154684 (2005)]

D. Classification of courts according to Subject Matter Jurisdiction in General

Note: Tijam 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)]

a. Courts of Original and Appellate Jurisdiction

Jurisdiction by estoppel While it is true that jurisdiction may be raised at any time, this rule presupposes that estoppel has not supervened. In this case, respondent (defendant below) actively participated in all stages of the proceedings before the trial court and invoked its authority by asking for an affirmative relief. Clearly, respondent is estopped from challenging the trial court’s jurisdiction, especially when an adverse judgment has been rendered [Soliven v. Fastform, G.R. No. 139031 (2004)]

7. Other Principles Cannot be the subject of compromise No compromise upon the jurisdiction of courts shall be valid [Art. 2035, Civil Code] Retroactivity The provisions of R.A. 7691 (An Act Expanding the Jurisdiction of MeTCs, MTCs, and MCTCs) amending B.P. 129 shall apply to all civil cases that have not yet reached the pre-trial stage [Sec. 7, R.A. 7691]. The resolution of the SC amending a provision of the ROC does not have to specify that it has retroactive effect as it pertains to a procedural matter. Contrary to private respondent’s allegation that the matter was no longer pending and undetermined, the issue of whether the petition for certiorari was timely filed was still pending reconsideration when the amendment to Sec. 4, Rule 65 took effect on September 1, 2000, hence, covered by its retroactive application [Siena Realty Corp. v. Gal-lang, G.R. No. 145169 (2004)]

1. According to Subject Matter

per se

Original

Appellate Have the power to Actions or proceedings review on appeal the may be originally filed decisions or orders of a with it lower court [1 Riano 62, 2014 Bantam Ed.] 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)]

b. Courts of Concurrent Original Jurisdiction Refers to courts with the same kind of original jurisdiction over certain actions [Prof. Avena] Principle of judicial hierarchy A common refrain in jurisprudence is that, where court have concurrent jurisdiction over a subject matter, the doctrine of hierarchy of courts, should be observed. Under this doctrine, a case must be filed before the lowest court possible having the appropriate jurisdiction, except if one can advance a special reason which would allow a party a direct resort to a higher court [1 Riano 57, 2014 Bantam Ed.] The principle of hierarchy of courts requires that recourses should be made to the lower courts before they are made to the higher courts [Republic v. Caguioa, G.R. No. 174385 (2013)] Parties must observe the hierarchy of courts before they can seek relief directly from the SC – the rationale is two-fold: 1. It would be an imposition upon the limited time of the Court; and

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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)] 2.

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)] The SC may disregard the doctrine if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations [1 Riano 58-59, 2014 Bantam Ed.] The SC has allowed direct invocation of its original jurisdiction to issue writs of certiorari when 1. There are special and important reasons clearly stated in the petition 2. Dictated by public welfare and the advancement of public policy 3. Demanded by the broader interest of justice 4. The challenged orders were patent nullities 5. Analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of the case [Republic v. Caguioa, G.R. No. 174385 (2013)] The Supreme Court held that strict observance of the doctrine of judicial hierarchy should not be a matter of mere policy but is a constitutional imperative. It ruled that when a question presented to the Court involves the determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case. Such question must first be brought before the proper trial courts or the CA, both of which are specially equipped to try and resolve factual issues. [Gios-Samar, Inc. v. DoTC and CAAP, G.R. No. 217158 (2019)]

have no authority of any kind [1 Riano 62, 2014 Bantam Ed.] Note: Courts do not and never have the “competence to decide their own jurisdiction”. Jurisdiction over the subject matter is a matter of legislative enactment that only the legislature may change [Manila Railroad v. Attorney General, G.R. No. 6287 (1911)] Nature of classification 1. This classification is one that can only be created by law because jurisdiction is a matter of substantive, not procedural, law [See Sec. 1, Art. VIII, Constitution] 2. Although the law may provide otherwise, it is a classification that usually pertains to the original jurisdiction of courts. [Prof. Avena] An example of courts of special jurisdiction would be the Shari’ah courts created under P.D. 1083 (Code of Muslim Personal Laws). The jurisdiction of special commercial courts created under A.M. No. 01-2-04SC (Interim Rules of Procedure Governing IntraCorporate Controversies under R.A. 8799) falls within the general original jurisdiction of Regional Trial Courts, because it consists of the jurisdiction of the Securities and Exchange Commission which was transferred under R.A. 8799 to Regional Trial Courts per se; hence, the designation “Special Commercial Courts’ simply refers to those specified branches of Regional Trial Courts which the Supreme Court has designated to exercise the said former jurisdiction of the SEC. [Gonzales v. GJH Land, Inc. G.R. No. 202664 (2015)]

2. According to Creation a. Constitutional and Statutory Courts Constitutional court – refers to a court directly created by a constitutional provision [1 Riano 60, 2014 Bantam Ed.], of which there is only one example: the Supreme Court [Sec. 1, Art. VIII, Constitution]

c. Courts of General and Special Jurisdiction General Vested by law with the jurisdiction to take cognizance of all kinds of cases, civil or criminal, of a particular nature

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Special Only for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they

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]

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Statutory court – refers to a court created by statutory law [1 Riano 60, 2014 Bantam Ed.] (e.g., the first courts created after the birth of the Philippine Republic were those created by virtue of R.A. 296 (The Judiciary Act of 1948)

b. Courts of Law and Equity Law

Equity Resolve issues presented in a case, in accordance with the Settle cases according natural rules of fairness to law and justice, and in the absence of a clear, positive law governing such issues [1 Riano 55, 2014 Bantam Ed.] Philippine courts are both courts of lawbasically courts of law, not courts of equity. 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)] Equity is available only in the absence of law and not as its replacement [PTA of ST. Matthew Christian Academy v. Metropolitan Bank and Trust Co., G.R. No. (2010)] Note: In Carceller v. CA [G.R. No. 124791 (1999)], the SC stated immediately preceding the dispositive portion that: “Courts of law, being also courts of equity, may not countenance such grossly unfair results without doing violence to its solemn obligation to administer fair and equal justice for all.”

3. According to Record-

Keeping

Courts of record and not of record Of record Not of record Those whose proceedings are Courts which are not enrolled and which are required to keep a bound to keep a written record or written record of all transcript of trials and proceedings proceedings held handled by them [1 therein [1 Regalado 2, Regalado 2, 2010 Ed., 2010 Ed.] see Luzano v. Romero,

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G.R. No. L-33245 (1971)] Keep a written record of its proceedings [1 Riano 61, 2014 Bantam Ed.] Strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud [1 Riano 61, 2014 Bantam Ed.]

Not bound to keep such records [1 Riano 61, 2014 Bantam Ed.]

Prior to 1969, municipal and city courts (referred to as “inferior courts” in the 1964 ROC) were not “courts of record” because they were not required to keep records of their proceedings. Under Sec. 3 of R.A. 6031, they were required to do so in the same manner as the then-Courts of First Instance. Hence, all Philippine courts are now courts of record. OTHER CLASSIFICATIONS Superior and inferior courts Superior Inferior Are lower in rank, in Have the power of relation to another review or supervision court and subject to over another and lower review and supervision court [1 Regalado 6, by the latter [1 Regalado 2010 Ed.] 6, 2010 Ed.] With controlling Subordinate to another authority over other court, the judgment of courts, and with which may be reviewed original jurisdiction of by a higher tribunal [1 its own [1 Riano 61, Riano 61, 2014 Bantam 2014 Bantam Ed.] Ed.] Note: The term “inferior courts”, in use in the 1964 ROC, was obliterated in the 1997 Rules of Civil Procedure. The equivalent term is now “municipal trial court” [Sec. 2, Rule 5]. Accordingly, the term “superior court” not only has lost meaning in the technical sense, but has also lost favor in terms of usage, in conformity with the spirit behind the obsolescence of the term “inferior court,” which was to do away with the pejorative connotation of it [Prof. Avena]

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E. Jurisdiction of Specific Courts

4. Principle of Judicial

Hierarchy

See Courts of Concurrent Original Jurisdiction above.

5. Doctrine of Non-

Interference or Doctrine of Judicial Stability

Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders [Lapu-Lapu Dev’t and Housing Corp. v. Group Management Corp., G.R. No. 141407 (2002)] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. Salas, G.R. No. 101041 (1991)] The doctrine applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil. Sinter Corp. v. Cagayan Electric Power, G.R. No. 127371 (2002)] The rationale for the rule is founded on the concept of jurisdiction: a court that acquires jurisdiction over the case and renders judgment therein has jurisdiction over its judgment, to the exclusion of all other coordinate courts, for its execution and over all its incidents, and to control, in furtherance of justice, the conduct of ministerial officers acting in connection with this judgment [Cabili v. Balindong, A.M. No. RTJ10-2225 (2011)] When not applicable The doctrine of judicial stability does not apply where a third party claimant is involved – this is 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. RTJ12-2321 (2012), citing Sec. 16, Rule 39, and quoting Naguit v. CA, G.R. No. 137675 (2000)]

1. Supreme Court Original jurisdiction a. Cases affecting 1. Ambassadors 2. Other public ministers, and 3. Consuls b. Petitions for 1. Certiorari 2. Mandamus 3. Prohibition 4. Habeas corpus, and 5. Quo warranto [Sec. 5(1), Art. VIII, Constitution] Parties seeking to question the resolutions of the Office of the Ombudsman in criminal cases or nonadministrative cases, may file an original action for certiorari with the SC, not with the CA, when it is believed that the Ombudsman acted with grave abuse of discretion [Ombudsman v. Heirs of Margarita Vda. De Ventura, G.R. No. 151800 (2009), citing Estrada v. Desierto, G. R. No. 156160 (2004)] Exclusive original jurisdiction Petitions for certiorari, prohibition and mandamus against 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 [P.D. 1606 as amended] [1 Riano 106, 2014 Bantam Ed.] e. Court of Tax Appeals (en banc) [1 Regalado 54, 2014 Bantam Ed.] The certiorari jurisdiction of the SC has been rigorously streamlined, such that Rule 65 only admits cases based on the specific grounds provided therein. The Rule applies if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. The independent action for certiorari will lie only if grave abuse of discretion is alleged and proven to exist [Lagua v. CA, G.R. No. 173390 (2012)] Note: In Araullo v. Aquino III [G.R. No. 209287 (2014)], the SC held that petitions for certiorari and prohibition are appropriate remedies to raise

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constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials. “With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasijudicial or ministerial functions.” CONCURRENT ORIGINAL JURISDICTION a. With CA 1. Petitions for certiorari, prohibition, and mandamus against 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 [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 Agency, the petition shall only be cognizable by the CA and must be filed there 2.

Petitions for writ of kalikasan [Sec. 3, Rules of Procedure for Environmental Cases]

b. With CA and RTC 1. Petitions for certiorari, prohibition and mandamus against lower courts and bodies 2. Petitions for quo warranto 3. Petitions for writs of habeas corpus This jurisdiction is subject to the doctrine of hierarchy of courts [Sec. 9(1), 21(1), B.P. 129; 1 Riano 107, 2014 Bantam Ed.]

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c. With RTC in cases affecting ambassadors, public ministers and consuls [Sec. 21(2), B.P. 129; 1 Riano 107, 2014 Bantam Ed.] d. With CA, RTC and Sandiganbayan – Petitions for writ 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 SC shall have the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: a. 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. b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. c. All cases in which the jurisdiction of any lower court is in issue. d. All criminal cases in which the penalty imposed is reclusion perpetua or higher. e. All cases in which only an error or question of law is involved. [Sec. 5(2), Art. VIII, Constitution] By way of petition for review on certiorari (appeal by certiorari under Rule 45) against a. CA b. Sandiganbayan c. RTC 1. Pure questions of law [Sec. 1, Rule 45] and 2. Cases falling under Sec. 5, Art. VIII, Constitution (see above) d. CTA in its decisions rendered en banc [1 Riano 107, 2014 Bantam Ed.] e. MetC, MTC, MCTC 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] 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 quasijudicial agencies – even only on a question of law

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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)] The SC may resolve factual issues in certain exceptional circumstances: a. The conclusion is grounded on speculations, surmises or conjectures b. The inference is manifestly mistaken, absurd or impossible c. There is grave abuse of discretion d. The judgment is based on a misapprehension of facts e. The findings of fact are conflicting f. There is no citation of specific evidence on which the factual findings are based g. The finding of absence of facts is contradicted by the presence of evidence on record h. The findings of the CA are contrary to those of the trial court i. The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion j. The findings of the CA are beyond the issues of the case k. Such findings are contrary to the admissions of both parties [Josefa v. Zhandong, G.R. No. 150903 (2003)]

2. Court of Appeals

[1 Riano 113-114, 2014 Bantam Ed.] 2.

Petitions for writ of kalikasan [Sec. 3, Rules of Procedure for Environmental Cases]

b.

With SC and RTC 1. Petitions for certiorari, prohibition and mandamus against lower courts and bodies 2. Petitions for quo warranto 3. Petitions for writs of habeas corpus

c.

With SC, RTC and Sandiganbayan 1. Petitions for writ of amparo [Sec. 3, Rule on the Writ of Amparo] and habeas data [Sec. 3, Rule on the Writ of Habeas Data]

EXCLUSIVE APPELLATE JURISDICTION a. By ordinary appeal 1. From judgments of RTC and Family Courts [Sec. 9(3), B.P. 129, as amended; Sec. 14, R.A. 8369] 2. 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] b. By petition for review 1. From judgments of the RTC rendered in its appellate jurisdiction [Sec. 22, B.P. 129, as amended; Rule 42; Sec. 9, B.P. 129] 2. From decisions, resolutions, orders or awards of the Civil Service Commission and other bodies mentioned in Rule 43 [Sec. 9(3), B.P. 129]

Exclusive original jurisdiction Actions for annulment of judgments of the RTC [see: Sec. 9(2), BP 129; Sec. 1, Rule 47] CONCURRENT ORIGINAL JURISDICTION a. With SC 1. Petitions for certiorari, prohibition, and mandamus against i. RTCs ii. Civil Service Commission iii. Central Board of Assessment Appeals iv. Other quasi-judicial agencies mentioned in Rule 43 v. NLRC [St. Martin Funeral Homes v. NLRC , G.R. No. 130866 (1998) Note: Although there is concurrent jurisdiction as the 1987 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 Agency, the petition shall only be cognizable by the CA.

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Note: The enumeration of quasi-judicial agencies under Sec. 1, Rule 43 is not exclusive [Wong v. Wong, G.R. No. 180364 (2014), quoting CayaoLasam v. Sps. Ramolete, G.R. No. 159132 (2008)] From decisions of the Office of the Ombudsman in administrative disciplinary cases [1 Riano 114-115, 2014 Bantam Ed.] 3.

3. 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

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d.

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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, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads • City mayors, vice-mayors, members of the sangguniang 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 2. Members of Congress and officials thereof classified as Grade 27 and up under R.A. 6758 3. Members of the Judiciary without prejudice to the provisions of the Constitution 4. Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution 5. All other national and local officials classified as Grade 27 and higher under R.A. 6758 Other offenses or felonies whether simple or complexed with other crimes committed by the

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public officials and employees mentioned in subsection a. of 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] RTC shall have exclusive original jurisdiction where the information a. Does not allege any damage to the government or any bribery; or b. 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] Subject to rules promulgated by SC, the cases falling under the jurisdiction of the RTC shall be tried in a judicial region other than where the official holds office [Sec. 4, P.D. 1606, as amended by R.A. 10660] Exclusive original jurisdiction shall be vested in the proper RTC, MeTC, MTC, and MCTC, 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] The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts 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] The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under E.O. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the SC [Sec. 4, P.D. 1606, as amended by R.A. 10660]

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

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]

4. 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 (principal nature of an action): 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)] 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 not incapable of pecuniary estimation.

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

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: Page 19 of 481

Exception: Forcible entry and unlawful detainer cases [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." [Heirs of Sebe v. Heirs of Sevilla, G.R. No. 174497 (2009)]

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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)]

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]

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.] 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.

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 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 intra-corporate or partnership relations, between and among

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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]

Concurrent original jurisdiction a. With SC in cases affecting ambassadors, public ministers and consuls [Sec. 21(2), B.P. 129; Sec. 5(5), Art. VIII, Constitution] b. With SC and CA 1. Petitions for certiorari, prohibition and mandamus against lower courts and bodies 2. Petitions for quo warranto 3. Petitions for writs of habeas corpus [Sec. 9(1), 21(2), B.P. 129; Sec. 5(5), Art. VIII, Constitution] c. With SC, CA and Sandiganbayan: petitions for writ 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 over cases decided by lower courts 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 - SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases,

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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]

6. Metropolitan Trial Courts,

Municipal Trial Courts in Cities, Municipal Trial Courts, Municipal Circuit Trial Courts

5. Family Courts 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 1. Declaration of status of children as abandoned, dependent or neglected children 2. Voluntary or involuntary commitment of children 3. Suspension, termination or restoration of parental authority and 4. 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]

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a.

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] 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] 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 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

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MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions [Sec. 34, B.P. 129, as amended by R.A. 7691] 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]

7.

Shari’a Courts

Exclusive original jurisdiction of Shari’a District Courts a. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; b. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration of appointment administrators or executors regardless of the nature or aggregate value of the property; c. Petitions for the declaration of absence and death for the cancellation and correction of entries in the Muslim Registries; d. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and e. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus and all other auxiliary writs and processes in aid of its appellate jurisdiction [Art. 143(1), P.D. 1083]

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Except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court (now MTC under B.P. 129, as amended by R.A. 7691] c. All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims [Art. 143(2), P.D. 1083] Appellate jurisdiction of Shari’a District Courts Over all cases tried in Shari’a Circuit Courts within their territorial jurisdiction [Art. 144, P.D. 1083] Exclusive original jurisdiction of Shari’a Circuit Courts a. All cases involving offenses defined and punished under P.D. 1083 b. All civil actions and proceedings between parties who are Muslims or have been married in accordance with Art. 13, P.D. 1083 involving disputes relating to 1. Marriage 2. Divorce recognized under P.D. 1083 3. Betrothal or breach of contract to marry 4. Customary dowry (mahr) 5. Disposition and distribution of property upon divorce 6. Maintenance and support, and consolatory gifts (mut’a); and 7. Restitution of marital rights c. All cases involving disputes relative to communal properties [Art. 155, P.D. 1083] The Shari’a District Court or the Shari’a Circuit Court shall constitute an Agama Arbitration Council [Art. 160, P.D. 1083] in cases of divorce by talaq and tafwid [Art. 161, P.D. 1083] and subsequent marriages [Art. 162, P.D. 1083] The Shari’a Circuit Court may also constitute a council to settle amicably cases involving offenses against customary law which can be settled without formal trial [Art. 163, P.D. 1083]

Concurrent jurisdiction of Shari’a District Courts (concurrent with existing civil courts) a. Petitions of Muslim for the constitution of the family home, change of name and commitment of an insane person to an asylum b. All other personal and legal actions not mentioned in par. (d) of the immediately preceding topic, wherein the parties involved are Muslims Page 22 of 481

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F. Jurisdiction over Cases Covered by The Revised Rules of Procedure for Small Claims Cases, The Revised Rules on Summary Procedure, and Barangay Conciliation Cases covered by Revised Rules of Procedure for Small Claims Cases The Revised Rules shall govern the procedure in actions before the MeTCs, MTCCs, MTCs and MCTCs for payment of money where the value of the claim does not exceed PHP 200,000 exclusive of interest and costs [Sec. 2, A.M. No. 08-8-7-SC, February 1, 2016] Note: The limit has been raised to PHP 300,000, to take effect on August 1, 2018 [A.M. No. 08-8-7-SC, July 10, 2018]. However, this was superseded in a later resolution, amending the jurisdictional amount of these courts under Republic Act No. 7691 to PHP 400,000 for the MeTCs and PHP 300,000 for the MTCCs, MTCs, and MCTCs, exclusive of interest and costs, to take effect on April 1, 2019. [SC Resolution, February 26, 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 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] 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 Attorney’s fees awarded shall not exceed PHP 20,000

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All other cases, except probate proceedings where the total amount of the plaintiff‘s claim does not exceed PHP 100,000 (outside Metro Manila) or PHP 200,000 (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] 2.

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. 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 [Section 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

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c.

Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and support pendente lite d. Where the action may be barred by the Statute of Limitations 10. Labor disputes or controversies arising from employer-employee relationship 11. Where the dispute arises from the CARL 12. Actions to annul judgment upon a compromise which may be directly filed in court [Supreme Court Administrative Circular No. 14-93]

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G. Totality Rule For purposes of determining jurisdiction over the case, where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions [Sec. 33[1], B.P. 129, as amended by R.A. 7691]

Note: Barangay conciliation is a condition precedent for filing a case. The failure to comply with a condition precedent is a ground for a motion to dismiss under Sec. 1(j), Rule 16 but the dismissal is without prejudice [Sec. 5, Rule 16]

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III. CIVIL PROCEDURE

•

Procedure in the Court of Appeals - Rule 44 to Rule 55 Procedure in the SC - Rule 56 Provisional Remedies - Rule 57 to Rule 61

• •

A. Actions

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2. Meaning of Special Civil

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)] A legal and formal demand of one’s right from another person made and insisted upon in a court of justice. 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.] In general: kinds of civil actions 1. As to place a. Transitory –One the venue of which is dependent generally upon the residence of the parties regardless of where the cause of action arose. Example. Personal action. b. Local - One which is required by the Rules to be instituted in a particular place in the absence of an agreement to the contrary. Example: Real action [1 Regalado 24, 2010 Ed.] 2. As to object a. Action in rem b. Action quasi in rem c. Action in personam 3. As to foundation a. Real b. Personal

1. Meaning of Ordinary Civil

Actions

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] Rule 62 to Rule 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. There are 10 special civil actions a. Interpleader - Rule 62 b. Declaratory Relief and Similar Remedies - Rule 63 c. Review of Judgments and Final Orders or Resolutions of COMELEC and COA - Rule 64 d. Certiorari, Prohibition and Mandamus - Rule 65 e. Quo warranto - Rule 66 f. Expropriation - Rule 67 g. Foreclosure of Real Estate Mortgage - Rule 68 h. Partition - Rule 69 i. Forcible Entry and Unlawful Detainer - Rule 70 j. Contempt - Rule 71

3. 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]

4. Civil Action v. Special

Actions

Proceedings

One which is governed by the rules for ordinary civil actions [Sec. 3(a), par. 2, Rule 1] 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 Regional Trial Courts - Rule 6 to Rule 39 • Appeals - Rule 40 to Rule 43

Civil Action One by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong [Sec. 3(a), par. 1, Rule 1]

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Special Proceeding Remedy by which a party seeks to establish a status, a right, or a particular fact [Sec. 3(c), Rule 1]

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5. Personal Actions and Real

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A personal action is ‘transitory,’ i.e. its venue depends upon the residence of the plaintiff or of the defendant, at the option of the plaintiff [Sec. 2, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)]

Actions

Why distinction is important The distinction is important for purposes of determining venue: The question whether or not 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. L-30175 (1975)] Real action It is an action affecting title to or possession of real property, or interest therein [See Sec. 1, Rule 4] Examples: partition or condemnation of, or foreclosure of mortgage on, real property [Go v. United Coconut Planters Bank, G.R. No. 156187 (2004)] A real action is ‘local,’ i.e. its venue depends upon the location of the property involved in the litigation [Sec. 1, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)] 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)] and Olivarez Realty vs Castillo [G.R. No. 196251 (2014)], 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. The case of Heirs of Bautista involved a complaint to redeem a land subject of a free patent and the case of Olivarez involved an action for rescission of contract involving real property. Personal action It refers to all other actions which does not affect title to or possession of real property or interest therein are personal action [Sec. 2, Rule 4] Personal action is one brought for the recovery of personal property, for the enforcement of some contract or recovery of damages for its breach, or for the recovery of damages for the commission of an injury to the person or property [Go v. United Coconut Planters Bank, G.R. No. 156187 (2004)]

6. Local and Transitory

Actions

Local Action 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. AttorneyGeneral, G.R. No. L6287 (1911)] Venue depends upon the location of the property involved in the litigation [BPI v. Hontanosas, G.R. No. 157163 (2014)]

Transitory Action 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 [Manila Railroad v. Attorney-General, G.R. No. L-6287 (1911)] Its venue depends upon the residence of the plaintiff or of the defendant, at the option of the plaintiff [BPI v. Hontanosas, G.R. No. 157163 (2014)]

Why distinction is important The determination of whether an action is local or transitory is necessary to determine the proper venue of the action [Sec.1, Rule 4 in relation to Sec. 2, Rule 4] Basis of distinction If action is founded on privity of contract between parties, then the action is transitory [De la Cruz v. El Seminario de la Archidiocesis de Manila, G.R. No. L-5402 (1911)] But if there is no privity of contract and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local and must be brought in the place where the land lies [De la Cruz v. El Seminario de la Archidiocesis de Manila, G.R. No. L-5402 (1911)]

COMPARE the specific enumeration in the Go case to Sec. 2, Rule 4. Page 26 of 481

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7. 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, GR. 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 228, 2014 Bantam Ed.]

Actions in re, in personam, and quasi in rem Action in rem Action in personam One which seeks to enforce personal rights and Action against the thing or res obligations brought against itself, instead of against the the person. Its purpose is to person [Hernandez v. Rural impose, through the judgment Definition Bank of Lucena, Inc. G.R. No. of the court, some liability L-29791, (1978)] directly upon the person of the defendant [Paderanga vs Buissan, GR. No. 49475 (1993)] Not a prerequisite to confer Necessary for the court to jurisdiction on the court, validly try and decide the case Jurisdiction provided that the latter has which can be made through over the jurisdiction over the res [Lucas service of summons [Lucas vs person v. Lucas, G.R. No. 190710 Lucas, G.R. No. 190710 (2011)] (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 How Jurisdiction is acquired the law, or (b) as a result of jurisdiction through service of summons the institution of legal is acquired as provided in the Rule 14 proceedings, in which the power of the court is recognized and made effective [Lucas v. Lucas, G.R. No. 190710 (2011)] Any judgment therein is The decision is binding as Binding binding only upon the parties against the whole world effect of properly impleaded [Paderanga [Paderanga vs Buissan, G.R. No. decisions vs Buissan, GR. No. 49475 49475 (1993)] (1993)] Petition for adoption, annulment of marriage, or Action for a sum of money; Examples correction of entries in the action for damages [1 Riano birth certificate [Lucas v. Lucas, 221, 2014 Bantam Ed.] G.R. No. 190710 (2011)]

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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 vs 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 vs 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 vs Lucas, G.R. No. 190710 (2011)] Judgments therein are binding only upon the parties who joined in the action [Macasaet v. Co, G.R. No. 156759 (2013)] Attachment, foreclosure of mortgage, action for partition and action for accounting [1 Riano 227, 2014 Bantam Ed.]

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B. Cause of Action

8. Independent civil action An independent civil action may be brought in the cases provided by the Civil Code a. Art. 32 (violation of constitutional rights by a public officer or employee, or a private individual) b. Art. 33 (defamation, fraud, or physical injuries) c. Art. 34 (refusal or failure to render aid or protection by a member of the police force); and d. Art. 2176 (quasi-delict) [Sec. 3, Rule 111] The action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. However, the offended party cannot recover damages twice for same act or omission charged in the criminal action [Sec. 3, Rule 111] “Physical injuries” under Art. 33 is used in the generic sense, and not in reference to the offenses defined in the Revised Penal Code. It also includes consummated, frustrated, and attempted homicide and death arising from delict [Madeja v. Hon. Caro, G.R. No. L-51183 (1983)]

1. Meaning of Cause of Action Act or omission by which a party violates a right of another [Sec. 2, Rule 2] Delict or wrongful act or omission committed by the defendant in violation of the primary right of the plaintiff [Danfoss Inc. v. Continental Cement Corporation, G.R. No. 143788 (2005)] 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 and e. Quasi-delict [Sagrada Orden etc v. NACOCO, G.R. No. L-3756 (1952)] Elements of a cause of action a. Plaintiff’s legal right b. Defendant’s correlative obligation to respect plaintiff’s right c. Defendant’s act/omission in violation of plaintiff’s right [Ma-ao Sugar Central v. Barrios, G.R. No. L-1539 (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)]

2. Right of Action v. 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 who has committed a delict or wrong against him Page 28 of 481

Cause of Action The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff [Racoma v.

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Right of Action

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Cause of Action Fortich, G.R. No. L29380 (1971)]

Right to sue as a consequence of the delict

The delict or wrong

Whether such acts give the plaintiff a right of action is determined by substantive law

Whether the plaintiff has a cause of action is determined by the averments in the pleading regarding the acts committed by the defendant

[1 Regalado 21, 2010 Ed.]

REMEDIAL LAW

Failure of the complaint to state a cause of action v. lack of cause of action Failure to state a cause of action and lack of cause of action are really different from each other. On the one hand, failure to state a cause of action refers to the insufficiency of the pleading, and is a ground for dismissal under Rule 16 of the ROC. On the other hand, lack of cause [of] action refers to a situation where the evidence does not prove the cause of action alleged in the pleading [Macaslang v. Zamora, G.R. No. 156375 (2011)]

4. Test of Sufficiency of Cause

of Action

There can be no right of action without a cause of action being first established [1 Regalado 21, 2010 Ed., see Español v. The Chairman and Members of the Board of Administrators, Philippine Veterans Administration, G.R. No. L-44616 (1985)] For an instance where the right of action of a plaintiff was suspended, see Ma-ao Sugar Central v. Barrios [G.R. No. L-1539 (1947)] where the SC held that an E.O. providing for a debt moratorium not only suspended the execution of the judgment that the court could render so far as it ordered the payment of debts and other monetary obligations, but also suspended the filing of suit in the courts of justice for the enforcement of the payment of debts and other monetary obligations, if timely objection is set up by the defendant debtor.

3. Failure of the Complaint to

State a Cause of Action

Ground for dismissal A motion to dismiss may be made on the ground that the pleading asserting the claim states no cause of action [Sec. 1(g), Rule 16] The cause of action must unmistakably be stated or alleged in the complaint or all the elements required by substantive law must clearly appear from a mere reading of the complaint [1 Riano 240, 2014 Bantam Ed.] 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)]

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)] 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

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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.

5. 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. A party may not institute more than one suit for a single cause of action [Sec. 3, Rule 2] Splitting a single cause of action is the act of dividing a single or indivisible cause of action into several parts or claims and instituting two or more actions upon them. A single cause of action or entire claim or demand cannot be split up or divided in order to be made the subject of two or more different actions [Chu v. Sps. Cunanan, G.R. No. 156185 (2011)] Test 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 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)] For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by the rule against the splitting of a cause of action [City of Bacolod v. SM Brewery, G.R. No. L-25134 (1969)] Amendment as remedy if other reliefs not included in the complaint 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)]

REMEDIAL LAW

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] Defendant’s remedy File a motion to dismiss under Rule 16 on the ground that a. There is another action pending between the same parties for the same cause [Sec. 1(e), Rule 16]; or b. The cause of action is barred by a prior judgment [Sec. 1(f), Rule 16] Rationale a. Prevent repeated litigation between the same parties in regard to the same subject or controversy b. Protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause) c. Avoid the costs and expenses incident to numerous suits [City of Bacolod v. SM Brewery, G.R. No. L-25134 (1969)]

6. Joinder and Misjoinder of

Causes of Action

Joinder of causes of action The assertion of as many causes of action as a party may have against another in one 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 258-259, 2014 Bantam Ed.] Ratio 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)]

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There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action [1 Regalado 83, 2010 Ed.] Requisites a. The party joining the causes of action shall comply with the rules on joinder of parties b. The joinder shall not include special civil actions or actions governed by special rules c. Where 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 d. 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 (“totality rule”) [Sec. 5, Rule 2] 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)] Misjoinder not ground for dismissal Misjoinder is not a ground for dismissal of an action [Sec. 6, Rule 2] Effect of misjoinder 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 [Sec. 6, Rule 2] 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)]

REMEDIAL LAW

C. Parties to Civil Actions Plaintiff May refer to the claiming party, counter-claimant, cross-claimant, or third-party plaintiff [Sec. 1, Rule 3] Defendant May refer to the original defending party, the defendant in a counterclaim, the cross-defendant, 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 [Sec. 10, Rule 3] Who may be parties 1. Natural persons 2. Juridical persons 3. Entities authorized by law [Sec. 1, Rule 3] Judicial persons 1. The State and its political subdivisions 2. Other corporations, institutions and entities for public interest or public purpose, created by law, and 3. 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 [Art. 44, Civil Code] Entities authorized by law 1. A corporation by estoppel is precluded from denying its existence, and the members are liable as general partners [Sec. 21, Corporation Code] 2. 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] 3. 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)] 4. A legitimate labor union may sue and be sued in its registered name [Art. 251(e), Labor Code] 5. The Roman Catholic Church may be a party; as to its properties, the Archbishop or 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)]

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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. 122, Corporation Code] [1 Riano 264, 2014 Bantam Ed.] 6.

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 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]

1. Real Parties in Interest;

Indispensable Parties; Representatives as Parties; Necessary Parties; Indigent Parties; Alternative Defendants

a. 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] Definition of interest Material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved [Ang v. Sps. Ang, G.R. No. 186993 (2012)] Nature of interest The interest must be real, which 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 Rhustam Dagadag v. Tongnawa, G.R. No. 161166-67 (2005)]

REMEDIAL LAW

Exception: Unless otherwise provided by law or the Rules [Sec. 2, Rule 3] Spouses as parties General rule: Husband and wife shall sue and be sued jointly Exception: As provided by law [Sec. 4, Rule 3] This is an illustration of joinder of pro forma parties required by the Rules. The propriety of suits by or against the spouses should now take into account the pertinent provisions of the Family Code [1 Regalado 90, 2010 Ed.] Failure to name a real party in interest If the suit is not brought in the name of or against the real party-in-interest, a Motion to Dismiss may be filed on the ground that the complaint “states no cause of action.” [Balagtas v. CA, G.R. No. 109073 (1999)] Remedies 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. L-9300 (1958)]

b. Indispensable Parties A real party-in-interest without whom no final determination can be had of an action [Sec. 7, Rule 3] General rule: joinder of parties is permissive [Sec. 6, Rule 3] Exception: joinder of a party becomes compulsory when the one involved is an indispensable party [Sec. 7, Rule 3]

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 [Sec. 2, Rule 3]

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Indispensable Parties

c. 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 shall be deemed to be the real party in interest [Sec. 3, Rule 3] Agent acting on his own name and for benefit of undisclosed principal General rule: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal Exception: When the contract involves things belonging to the principal [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]

d. Necessary Parties Not an indispensable party but 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.]

Necessary Parties Should 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. He has to be joined whenever possible to afford complete relief to those who are already parties and to

REMEDIAL LAW

Necessary Parties avoid multiple litigations [1 Riano 281, 2014 Bantam Ed.] Final decree can be had in a case even without a necessary party because his interests are separable from the interest litigated in the case [Chua v. Torres, G.R. No. 151900 (2005); Seno v. Mangubat, G.R. No. L-44339 (1987)]

e. Indigent Parties Definition One who has no money or property sufficient and available for food, shelter, and basic necessities [Sec. 21, Rule 3] Compare with: 1. Indigent litigants 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 shall be 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 3. 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 abovementioned, 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. [Sec. 19, Rule 141] Benefits to indigent parties 1. Include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him 2. Amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides

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REMEDIAL LAW

[Sec. 3, Rule 21] Consequence if party not actually indigent If the party is not actually indigent under this Rule, 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 [Sec. 3, Rule 21] COMPARE WITH “indigent litigants”: 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 [Sec. 18, Rule 141] When authority to litigate as indigent litigant a matter of right When an application to litigate as an indigent litigant is filed, the court shall scrutinize the affidavits and supporting documents to determine if the applicant complies with the standards prescribed in Sec. 19, Rule 141. If so, the authority to litigate as indigent litigant is automatically granted and the grant is a matter of right [Sps. Algura v. City of Naga, G.R. No. 150135 (2006)] When requirement under Sec. 19, Rule 141 not met However, if the trial court finds that one or both requirements have not been met, then it would set a hearing to enable the applicant to prove that the applicant complies with Sec. 21, par. 1, Rule 3. The adverse party may adduce countervailing evidence. The trial court will then rule on the application. In addition, Sec. 21, Rule 3 also provides that the adverse party may later still contest the grant of such authority at any time before judgment is rendered by the trial court. If the court determines after hearing, that the party declared as an indigent is in fact not, 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 of prescribed fees shall be made, without prejudice to such other sanctions as the court may impose [Sps. Algura v. City of Naga, G.R. No. 150135 (2006)]

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)]

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

2. Compulsory and Permissive

Joinder of Parties

a. 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)] 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

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[Sec. 9, par. 1, Rule 3]

REMEDIAL LAW

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]

b. 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.] Notes: 1. Compare to joinder of causes of action where it is enough if the causes of action arise out of the same contract, as there is no need for a common question of fact or law 2. 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]

3. 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; when ordered by the court Non-joinder of an indispensable party is not a ground for outright dismissal of the action. If the plaintiff refused to implead an indispensable party despite order of the court, that court may dismiss the complaint for the plaintiff’s failure to comply with the order. [Pamplona Plantation v. Tinghil, G.R. No. 159121 (2005)] Should the court find the reason for the non-joinder 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] Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just [Sec. 11, Rule 3] Objections to defects in parties Objections should be made at the earliest opportunity. At the moment such defect becomes apparent, a motion to strike the names of the parties must be made. Thus, objections to misjoinder cannot be raised for the first time on appeal [Lapanday Agricultural & Development Corporation v. Estita, G.R. No. 162109 (2005)]

4. Class Suits 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 d. The representative sues or defends for the benefit of all. [Sec. 12, Rule 3] There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual planters for an allegedly libelous article in an international magazine. There is no common or

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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] 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] Taxpayer’s suit or derivative suit is in the nature of class 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.] 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 Sections 23 and 36 of the 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)] In a derivative action, the real party in interest is the corporation itself, not the shareholders who actually instituted it [Lim v. Lim Yu, G.R. No. 138343 (2001)] 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)]

REMEDIAL LAW

5. Suits Against Entities

Without Juridical Personality

Requisites a. There are 2 or more persons not organized as a juridical entity 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.] 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. 8, Rule 14]

6. Effect of Death of Party

Litigant

Duty of counsel upon death of client a. Inform court of such fact within 30 days after the death; 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 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)]

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Survival of action Survival depends on the nature of the action and the damage sought. a. Causes of action that survive 1. The wrong complained of affects primarily and principally property and property rights 2. Injuries to the person are merely incidental [Cruz v. Cruz, G.R. No. 173292 (2010)] 3. 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; 1 Riano 289, 2014 Bantam Ed., citing Aguas v. Llemos, G.R. No. L-18107 (1962)] b. Causes of action that do not survive 1. The injury complained of is personal to the person 2. Property and property rights affected are incidental [Cruz v. Cruz, G.R. No. 173292 (2010)] 3. E.g. Action for support, annulment of marriage, legal separation [1 Riano 291, 2014 Bantam Ed.] 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] Summons to the substitute 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. L-11567 (1986)] Effect of failure to order substitution Failure of the court 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) citing Ordoveza v. Raymundo, 63 Phil. 275 (1936); Obut v. Court of Appeals, et al., 70 SCRA 546.]

REMEDIAL LAW

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 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 c. Defendant dies before the entry of final judgment in the court in which the action was pending [Sec. 20, Rule 3] Effect Since the action survives the decedent’s death, substitution of the defendant shall be done following the procedure prescribed by Sec. 16, Rule 3. 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] Because of the rule mandating compliance with rule for prosecuting claims against the estate of a deceased person [Sec. 20, Rule 3], the prevailing plaintiff 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.] Incompetency or incapacity If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action

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to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem [Sec. 18, Rule 3] Note: The party becomes incapacitated or incompetent during the pendency of the action [1 Riano 292, 2014 Bantam Ed., citing Sec. 18, Rule 3] Transfer of interest The action may be continue by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party [Sec. 19, Rule 3]

7. Distinction between Real

Party in Interest and locus

standi

Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits, standing is governed by the "real-parties-in interest" rule as contained in Sec. 2, Rule 3, which provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.” [David v. Macapagal-Arroyo, G.R. No. 171396 (2006)] In public suits in this jurisdiction, the SC has adopted the “direct injury test” to determine locus standi [Planters Products v. Fertiphil, G.R. No. 166006 (2008)]

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D. Venue Procedural matter; not jurisdictional Venue is related only to the place of trial or the geographical location in which an action or proceeding should be brought and does not equate to the jurisdiction of the court [Spouses Mendiola v. CA, G. R. No. 159746 (2012)] It is a procedural, not a jurisdictional matter [Phil. Banking v. Tensuan, G.R. No. 104649 (1994)] Choosing the venue of an action is not left entirely to a plaintiff’s caprice; the matter is regulated by the ROC [Ang v. Sps. Ang, G.R. No. 186993 (2012)] On dismissal; motion to dismiss necessary; exception A motu propio dismissal based on improper venue is patently incorrect [Sec. 1, Rule 9; Dolot v. Paje, G.R. No. 199199 (2013)] Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot truly be said to have been improperly laid because the venue, although technically wrong, may be acceptable to the parties for whose convenience the rules of venue had been laid [Dacuycoy v. IAC, G.R. No. 74854 (1991)]. However, the court may effect a motu propio 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]

1. Venue v. Jurisdiction Venue Place where the case is to be heard or tried [Nocum v. Tan, G.R. No. 145022 (2005)] Procedural [Nocum v. Tan, G.R. No. 145022 (2005)] Establishes a relation between plaintiff and defendant, or petitioner and respondent [Nocum v. Tan, G.R. No. 145022 (2005)] May be changed by the written agreement of Page 38 of 481

Jurisdiction Authority to hear and determine a case [Nocum v. Tan, G.R. No. 145022 (2005)] Substantive [Nocum v. Tan, G.R. No. 145022 (2005)] Establishes a relation between the court and the subject matter [Nocum v. Tan, G.R. No. 145022 (2005)] Fixed by law and cannot be conferred by

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Jurisdiction the act or agreement of the parties [Nocum v. Tan, G.R. No. 145022 (2005)] The court may dismiss The court may not an action motu proporio dismiss an action motu in case of lack of proporio for improper jurisdiction over the venue [Rudolf Lietz subject matter [Rudolf Holdings, Inc. v. Registry Lietz Holdings, Inc. v. of Deeds of Parañaque Registry of Deeds of City, G.R. No. G.R. Parañaque City, G.R. No. 133240 (2000)] No. G.R. No. 133240 (2000)] Jurisdiction over the The objection to an subject matter may be improper venue must raised at any stage of be raised either in a the proceedings since it motion to dismiss or in is conferred by law, the answer because of although a party may Sec. 1, Rule 9 (defenses be barred from raising and objections not it on the ground of pleaded are deemed estoppel [La’o v. waived) Republic, G.R. No. 160719 (2006)] [1 Riano 196, 2014 Bantam Ed.]

any of the provinces wherein a parcel of land is situated [1 Regalado 118, 2010 Ed., citing El Hogar Filipino v. Seva, G.R. No. 36627 (1932)]

Venue is procedural, not jurisdictional, and hence may be waived. It is meant to provide convenience to the parties, rather than restrict their access to the courts as it relates to the place of trial [Heirs of Lopez v. De Castro, G.R. No. 112905 (2000), cited in 1 Riano 196, 2014 Bantam Ed.]

Definition of residence 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)]

Venue the parties [Nocum v. Tan, G.R. No. 145022 (2005)] or waived.

2. 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. b. 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] a.

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 was in the [court] of

If the parcels of land are subject of separate and distinct transactions, there is no common venue and separate actions should be laid in the [court] of the province wherein each parcel of land is situated [1 Regalado 118, 2010 Ed., citing Mijares v. Piccio, G.R. No. L-10458 (1957)]

3. 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)]

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)]

4. Venue of Actions Against

Non-Residents

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.]

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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] The court of the place where any of the principal plaintiffs resides, or where any of the principal defendants resides, at the election of the plaintiff has been added to prevent plaintiff from choosing residence of minor plaintiff or defendant as venue [1 Herrera 614, 2007 Ed.]

5. When the Rules on Venue

Do Not Apply

a.

Cases where a specific rule or law provides otherwise, or b. Parties have validly agreed in writing before the filing of an action on the exclusive venue thereof [Sec. 4, Rule 4] Examples of item (a) are 1. Quo warranto proceeding commenced by the Solicitor General [Sec. 7, Rule 66] 2. Petition for a continuing writ of mandamus [Sec. 2, Rule 8, Rules of Procedure for Environmental Cases] 3. Civil and criminal action for damages in written defamation [Art. 360, RPC] [1 Riano 200, 2014 Bantam Ed.]

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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. L27033 (1969)] When stipulation may be disregarded The court may declare agreements on venue as contrary to public policy if such stipulation 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. L-44351 (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. To be sure, it would be inherently consistent for a complaint of this nature to recognize the exclusive venue stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is contained [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]

6. Effects of Stipulations on

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 law [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]

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2.

E. Rules on 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] Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts [Sec. 1, Rule 8] Pleadings v. motions Pleadings Purpose is to submit a claim or defense for Purpose appropriate judgment [Sec. 1, Rule 6] Judgment, which Relief by its 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 that is not included in a judgment

1. Kinds of Pleadings

3.

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To inform the defendant of all material facts on which the plaintiff relies to support his demand. To state the theory of a cause of action which forms the bases of plaintiff’s claim of liability [Tantuico v. Republic, G.R. No. 89114 (1991)]

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)] Non-ultimate facts A fact is essential if it cannot be stricken out without leaving the statement of the cause of action or defense insufficient [Toribio v. Bidin, G.R. No. 57821 (1985)]. Hence, conclusions, inferences, presumptions, and details of probative matters should not be alleged [1 Regalado 173, 2010 Ed.] "Evidentiary facts" are those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. They are not proper as allegations in the pleadings as they may only result in confusing the statement of the cause of action or the defense. They are not necessary therefor, and their exposition is actually premature as such facts must be found and drawn from testimonial and other evidence [1 Regalado 173-174, 2010 Ed.] 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)]

Pleadings Allowed a. Complaint b. Answer c. Counterclaim d. Cross-claim e. Third (fourth, etc.)-party complaint f. Complaint-in-intervention g. Reply [Sec. 2, Rule 6] h. Counter-counterclaims i. Counter-crossclaims [Sec. 9, Rule 6]

b. Answer A pleading where the defendant sets forth his defenses [Sec. 4, Rule 6] The defenses of a party are alleged in the answer to the pleading asserting a claim against him [Sec. 2, Rule 6]

The pleading alleging the plaintiff’s cause/s of action [Sec. 3, Rule 6]

Negative Defenses Specific denial of the material fact/s alleged in the pleading of the claimant essential to his cause/s of action.

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.

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

a. Complaint

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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 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.] Affirmative Defenses 1. Allegations of new matters which, while hypothetically admitting the material allegations in the claimant’s pleading would nevertheless prevent or bar recovery by him 2. 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 [Sec. 6, Rule 6] Raising affirmative defenses does not amount to acceptance of the jurisdiction of the court, but praying for affirmative reliefs is considered voluntary appearance and acquiescence to the court’s jurisdiction [NM Rothschild & Sons Ltd. v. Lepanto Consolidate Mining Co., G.R. No. 175799 (2011)]

c. Counterclaim Any claim which a defending party may have against an opposing party [Sec. 6, Rule 6] Kinds of counterclaims 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 set up shall be barred [Sec. 2, Rule 9] Not an initiatory pleading Said certifications are not required

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, whenever required by law, also a certificate to

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file action issued by the Lupong Tagapamayapa Must be answered by the Failure to answer a party against whom it is compulsory interposed, otherwise he counterclaim is not a may be declared in cause for a default default as to the declaration. counterclaim [1 Riano 385-387, 2014 Bantam Ed.]

COMPULSORY COUNTERCLAIM Requisites 1. It arises out of, or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim, and 2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction 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 counterclaim 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)] The filing of a motion to dismiss and the setting up of a compulsory counterclaim are 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)] 3. However, in another case, the remedy where a counterclaim is beyond the jurisdictional amount of the MTC is to set off the claims and file a separate action to collect the balance [Calo v.

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Ajax, G.R. No. L-22485 (1968)] Note, however, that the counterclaim in question in this case was permissive. Note: Under OCA Circular No. 96-2009, citing A.M. No. 04-2-04 SC, the payment of filing fees for compulsory counterclaims remains suspended effective September 21, 2004, pursuant to A.M. No. 04-2-04-SC] It clarified that the portion of the decision in Korea Technologies v. Lerma, G.R. No. 143581, which stated that docket fees are required to be paid in compulsory counterclaims has been deleted in a revised issuance. PERMISSIVE COUNTERCLAIM 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.] Permissive counterclaims must have an independent jurisdictional ground [1 Herrera 695, 2007 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. Nos. 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 counter- claim and is not barred even if not set up in the action (see also Sec. 2, Rule 9) [1 Regalado 143-144, 2010 Ed.] Determining whether a counterclaim is compulsory or permissive e. A positive answer on all four the following tests would indicate that the counterclaim is compulsory 1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute plaintiff’s claim as well as the counterclaim?

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4.

Is there any logical relation between the claim and counterclaim? [GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)] There is a logical relationship where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues [Meliton v. CA, G.R. No. 101883 (1992)] EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED 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. 6, Rule 16 – where the defendant does not file motion to dismiss but raises the ground as an affirmative defense 2. Dismissal under Sec. 2, Rule 17 – where the plaintiff files a motion to dismiss the case, after the defendant had filed a responsive pleading 3. Dismissal under Sec. 3, Rule 17 – where the complaint is dismissed due to the fault of the plaintiff How raised 1. By including it in the Answer a. A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein [Sec. 8, Rule 11] 2. By filing after the Answer a. A counterclaim may, by leave of court, set up the counterclaim by amendment before judgment, when • A pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or • Justice requires [Sec. 10, Rule 11] b. A counterclaim, which either matured or was acquired by a party after serving his pleading may, with permission of the court, be presented as a counterclaim by supplemental pleading before judgment [Sec. 9, Rule 11]

d. Cross-Claim 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 include a

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claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant [Sec. 8, Rule 6]

Cross-claim

Counterclaim

A cross-claim not set up shall be barred [Sec. 2, Rule 9]

Against a coparty [Sec. 8, Rule 6]

Against an opposing party [Sec. 6, Rule 6]

Arising out of the transaction that is the subject matter either of the original action or of a counterclaim therein [Sec. 8, Rule 6]

May arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim (compulsory counterclaim) [Sec. 7, Rule 6], or it may not (permissive counterclaim)

In respect of his opponent’s (plaintiff’s) claim [Sec. 11, Rule 6]

No third party involved (Sec. 6, Rule 6 refers to “opposing party”)

Third party is not yet impleaded, so leave of court required [Sec. 11, Rule 6; 1 Regalado 150, 2014 Bantam Ed.]

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)] Improper cross-claims 1. Where the cross-claim is improper, the remedy is certiorari [Malinao v. Luzon Surety (1964)] 2. The dismissal of a cross-claim is unappealable when the order dismissing the complaint becomes final and executory [Ruiz, Jr. v. CA (1993)] 3. A cross-claim is not allowed after declaration of default of cross-claimant. To allow the crossclaim 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)]

e. Third (Fourth, etc.) Party Complaint A claim that a defending party may, with leave of court, file against a person not a party to the action, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim [Sec. 11, Rule 6] Requisites 1. The party to be impleaded must not yet be a party to the action 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 plaintiffs claim against the original defendant, and 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)]

Third party is already impleaded in the action [1 Regalado 150, 2014 Bantam Ed.]

3rd party complaint Against a person not a party to the action [Sec. 11, Rule 6]

Complaint in intervention Brings into the action a 3rd person who was not originally a party Initiative is with the Initiative is with a nonperson already a party party who seeks to join to the action the action [1 Regalado 150-151, 2010 Ed.] 3rd party complaint

Under this Rule, a person not party to an action may be impleaded by the defendant either 1. On allegation of liability to the latter, covered by the phrase “contribution, indemnity, or subrogation” 2. On the ground of direct liability to the plaintiff; or both, as covered by the phrase “any other relief” [Samala v. Victor, G.R. No. L-53969 (1989)]

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Tests to determine whether the 3rd-party complaint is in respect of plaintiff’s claim 1. WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff’s claim; 2. WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant; 3. WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim [Capayas v. CFI, G.R. No. L-475 (1946)] Additional rules Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third-party complaint, regardless of the amount involved as a 3rdparty complaint is merely auxiliary to and is a continuation of the main action [Republic v. Central Surety, G.R. No. L-27802 (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)]

f. 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)] Pleadings-in-intervention 1. Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties 2. Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter [Sec. 3, Rule 19] Intervention is never an independent action, but is ancillary and supplemental to an existing litigation, and in subordination to the main proceeding [Saw v. CA, G.R. No. 90580 (1991)] Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan, G.R. No. 88345 (1996)]

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When allowed; requisites for intervention 1. A person who a. Has a legal interest in the 1. Matter in litigation, or 2. Success of either of the parties, or 3. Against both, or b. Is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof, 2. With leave of court 3. The court shall consider 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 [Sec. 1, Rule 19] No independent controversy allowed to be injected In general, an independent controversy cannot be injected into a suit by intervention, hence, such intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. It is not proper where there are certain facts giving the intervenor’s case an aspect peculiar to himself and differentiating it clearly from that of the original parties; the proper course is for the would-be intervenor to litigate his claim in a separate suit. Intervention is not intended to change the nature and character of the action itself, or to stop or delay the placid operation of the machinery of the trial. The remedy of intervention is not proper where it will have the effect of retarding the principal suit or delaying the trial of the action [Mactan-Cebu International Airport Authority v. Heirs of Minoza, G.R. No. 186045 (2011)] Allowance discretionary The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case [Mago v. CA, G.R. No. 115624 (1999)] It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule [Office of Ombudsman v. Samaniego, G.R. No. 175573 (2010)] Legal interest Interest must be of a direct and immediate character so that the intervenor will either gain or lose by the

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direct legal operation of the judgment. 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)] How to intervene 1. With leave of court, the court shall consider the requisites above 2. Motion to intervene may be filed at any time before rendition of judgment by the trial court [Sec. 2, Rule 19] 3. Copy of the pleadings-in-intervention shall be attached to the motion and served on the original parties [Sec.2, Rule 19] Time to intervene General rule: The motion to intervene must be filed at any time before rendition of judgment by the trial court [Sec.2, Rule 19] Exceptions: 1. With respect to indispensable parties, intervention may be allowed even on appeal [Falcasantos v. Falcasantos, G.R. No. L-4627 (1952)] 2. When the intervenor is the Republic [Lim v. Pacquing, G.R. No. 115044 (1995)] 3. Intervention may be allowed after judgment where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal [Pinlac v. CA, G.R. No. 91486 (2003)] Remedies for denial of motion for intervention 1. True, the SC has on occasion held that an order denying a motion for intervention is appealable. Where the lower court’s denial of a motion for intervention amounts to a final order, an appeal is the proper remedy, as when the denial leaves the intervenor without further remedy or resort to judicial relief. 2. A prospective intervenor’s right to appeal applies only to the denial of his intervention. Not being a party to the case, a person whose intervention the court denied has no standing to question the decision of the court. Petitioner could question only the trial courts orders denying his intervention and striking off from the records his answer-in-intervention, not the decision itself. [Foster-Gallego v. Sps. Galang, G.R. No. 130228 (2004)]

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g. Reply A pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters [Sec. 10, Rule 6] Effect of failure to reply General rule: If a party does not file such reply, all the new matters alleged in the answer are deemed controverted [Sec. 10, Rule 6] Exception: When a reply is necessary 1. To set up affirmative defenses on the counterclaim [Rosario v. Martinez, G.R. No. L4473 (1952)] 2. Where the answer alleges the defense of usury in which case a reply under oath should be made; otherwise, the allegation of usurious interest shall be deemed admitted [Rule 8, Sec. 8; Sun Bros. v. Caluntad, G.R. No. L-21440 (1966)] 3. Where the defense in the answer is based on an actionable document, a reply under oath must be made; otherwise, the genuineness and due execution of the document shall be deemed admitted [Sec. 11, Rule 8; Toribio v. Bidin, G.R. No. L-57821 (1985)]

h. Counter-counterclaim

A claim asserted against an original counter-claimant [Sec. 9, Rule 6]

i. Counter-cross-claim

A claim filed against an original cross-claimant [Sec. 9, Rule 6]

2. Pleadings Allowed under

The 2016 Revised Rules of Procedure for Small Claims Cases and The 1991 Revised Rule on Summary Procedure

a. Rule on Summary Procedure The only pleadings allowed to be filed are 1. Complaints

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Compulsory counterclaims pleaded in the Answer 3. Cross-claims pleaded in the Answer; and 4. Answers thereto [Sec. 3[A], II] 2.

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]

b. Revised Rules of Procedure for Small Claims Cases 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 non-extendible 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)

b.

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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]. 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 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]

3. Parts of a Pleading a. Caption Sets forth the 1. Name of the court 2. Title of the action (i.e. the names of the parties) and 3. The docket number, if assigned [Sec. 1, Rule 7] Body – Sets forth its (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

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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 a. 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. b. 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. 4. Date – Every pleading shall be dated. [Sec. 2, Rule 7]

2.

b. Signature and Address

18. 19.

Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box [Sec. 3, Rule 7]

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

20. 21.

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Petition for relief from judgment or order [Sec. 3, Rule 38] Petition for review from RTC to the CA [Sec. 1, Rule 42] Petition for review from quasi-judicial agencies to the CA [Sec. 5, Rule 43] Appeal by certiorari from the CTA to the SC [Sec. 12, RA 9282 amending Sec. 19, R.A. 1125] Appeal by certiorari from CA to the SC [Sec. 1, Rule 45] Petition for annulment of judgments or final orders and resolutions [Sec. 1, Rule 47] Complaint for injunction [Sec. 4, Rule 58] Application for appointment of receiver [Sec. 1, Rule 59] Application for support pendente lite [Sec. 1, Rule 69] Petition for certiorari against judgments, final orders, or resolutions of constitutional commissions [Sec. 2, Rule 64] Petition for certiorari [Sec. 1, Rule 65] Petition for prohibition [Sec. 2, Rule 65] Petition for mandamus [Sec. 3, Rule 65] Petition for quo warranto [Sec. 1, Rule 66] Complaint for expropriation [Sec. 1, Rule 67] Complaint for forcible entry or unlawful detainer [Sec. 4, Rule 70] Petition for indirect contempt [Sec. 4, Rule 71] Petition for appointment of a general guardian [Sec. 2, Rule 93] Petition for leave to sell or encumber property of the ward by a guardian [Sec. 1, Rule 95] Petition for declaration of competency of a ward [Sec. 1, Rule 97] Petition for habeas corpus [Sec. 3, Rule 102] Petition for change of name [Sec. 2, Rule 103] Petition for voluntary judicial dissolution of a corporation [Sec. 1, Rule 104] Petition for cancellation or correction of entries in the civil registry [Sec. 1, Rule 108]

Effect of Unsigned Pleading An unsigned pleading produces no legal effect. However, the court may allow such deficiency to be remedied if it appears that it was: 1. Due to mere inadvertence; and 2. Not intended for delay [Sec. 3, Rule 7]

22. 23. 24.

c. Verification and Certification against Forum Shopping

How verified By an affidavit declaring that 1. The affiant has read the pleading; and 2. The allegations therein are true and correct of his personal knowledge or based on authentic documents f. [Sec. 4, Rule 7]

Verification as a rule not required Pleadings need not be under oath, verified or accompanied by affidavit except when otherwise specifically required by law or rule [Sec. 4, Rule 7] Verification is required in the following instances 1. Pleadings filed in the inferior courts in cases covered by the Rules on Summary Procedure [Sec. 3, B]

25.

Who executes verification Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the

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petition have been made in good faith or are true and correct [Altres v. Empleo, G.R. No. 180986 (2008)]

[Korea Exchange Bank v. Gonzales, G.R. No. 142286 (2005)]

Effect of noncompliant or defective verification Noncompliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby [Altres v. Empleo, G.R. No. 180986 (2008)]

Who executes the CNFS It is the plaintiff or principal party who executes the certification under oath [Sec. 5, Rule 7]

Forum shopping The repeated availment of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the 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 has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action is pending 2. If there is such other pending action or claim, a complete statement of the present status thereof, and 3. If he should learn that the same or a similar action or claim has been filed or is pending, he shall report that fact within 5 days to the court wherein his aforesaid complaint or initiatory pleading has been filed [Sec. 5, Rule 7] CNFS is not required in a compulsory counterclaim, as this is not an initiatory pleading [UST Hospital v. Surla, G.R. No. 129718 (1998)] However, a certification is needed in permissive counterclaims

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)] 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)] Requirements of a Corporation Executing the Verification/Certification of Non-Forum Shopping The certification must be executed by an officer, or member of the board of directors, or by one who is duly authorized by a board resolution; otherwise, the complaint will have to be dismissed [Cosco Philippines Shipping, Inc. v. Kemper Insurance, Co., G.R. No. 179488 (2012)] However, the Court has ruled that a President of a corporation can sign the verification and CNFS, without the benefit of a board resolution. It also allowed the following persons to sign: 1. The Chairperson of the Board 2. The General Manager or acting GM 3. A personnel officer, and 4. An employment specialist in a labor case However, the better procedure would be to append a board resolution to obviate questions regarding the authority of the signatory [South Cotabato Communications Corp. v. Sto. Tomas, G.R. No. 173326 (2010), citing Cagayan Valley Drug Corporation v. Commissioner of Internal Revenue, G.R. No. 173326 (2010)] Belated submission of written authority has been found to be substantial compliance with the rule, especially when the acts were also ratified by the Board [Swedish Match Philippines v. Treasurer of the City of Manila, G.R. No. 181277 (2013)]

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Effect of noncompliant CNFS Defect Effect Not curable by mere amendment of the complaint or other initiatory pleading Failure to comply with the requirements

False certification Non-compliance with any of the undertakings therein

Willful and deliberate forum shopping

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If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated [Sec. 1, Rule 8]

Cause for dismissal of the case, without prejudice, unless otherwise provided, upon motion and after hearing Constitutes indirect contempt of court, without prejudice to administrative and criminal actions Ground for summary dismissal, with prejudice Direct contempt of court Cause for administrative sanctions

a. Manner of Making Allegations Facts that must be averred with particularity – Circumstances showing fraud or mistake [Sec. 5, Rule 8] Facts that may be averred generally 1. Performance or occurrence of all conditions precedent [Sec. 3, Rule 8] 2. Capacity to sue or be sued [Sec. 4, Rule 8] 3. Capacity to sue or be sued in a representative capacity [Sec. 4, Rule 8] 4. Legal existence of an organized association of persons that is made a party [Sec. 4, Rule 8] 5. Malice, intent, knowledge or other condition of the mind of a person [Sec. 5, Rule 8] 6. Judgment or decision of a domestic and foreign court, judicial or quasi-judicial tribunal, or of a board or officer without setting forth matter showing jurisdiction to render it [Sec. 6, Rule 8] 7. Official documents/acts [Sec. 9, Rule 8]

[Sec. 5, Rule 7]

1. Condition Precedent

d. Effect of the Signature of Counsel in a Pleading

In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient [Sec. 3, Rule 8]

This constitutes a certificate by him that 1. He has read the pleading 2. To the best of his knowledge, information, and belief there is good ground to support it, and 3. It is not interposed for delay [Sec. 3, Rule 7]

4. Allegations in a Pleading a.

Every pleading shall contain 1. In a methodical and logical form, 2. A plain, concise and direct statement 3. Of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, 4. Omitting the statement of mere evidentiary facts

If the cause of action depends upon a condition precedent, its fulfillment or legal excuse for nonfulfillment must be averred. 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)] A motion to dismiss may be made on the ground that a condition precedent for filing the claim has not been complied with [Sec. 1(j), Rule 16]

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Examples of conditions precedent: a. A tender of payment is required before making a consignation [Art. 1256, CC] 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.] Capacity The following must be averred 1. Facts showing the capacity of a party to sue or be sued; or 2. The authority to sue or be sued in a representative capacity; or 3. The legal existence of an organized association of persons that is made a party [Sec. 4, Rule 8] Note: A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include supporting particulars within the pleader's knowledge [Sec. 4, Rule 8]

2. Fraud, Mistake, Malice, Intent, Knowledge, and Other Condition of the Mind, Judgments, Official Documents or Acts Fraud, mistake, malice, intent, knowledge, and other condition of the mind In all averments of fraud or mistake, the circumstances constituting fraud or mistake mist be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally [Sec. 5, Rule 8] These particulars would necessarily include the time, place and specific acts of fraud committed. The reason for this rule is that an allegation of fraud

REMEDIAL LAW

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)] Judgment In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it [Sec. 6, Rule 8] Official documents or acts Sufficient to aver that the document was issued, or the act done, in compliance with law [Sec. 9, Rule 8]

b. 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.] A receipt is not an actionable document upon which an action or defense may be founded. It is a mere written and signed acknowledgment that money was received. There are no terms and conditions found therein from which a right or obligation may be established [Ogawa v. Menigishi, G.R. No. 193089 (2012)] Pleading the document 1. The substance of such document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, or 2. Said copy may with like effect be set forth in the pleading [Sec. 7, Rule 8] 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 claims to be the facts

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

c. 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. The parties are compelled to lay their cards on the table [Philippine Bank of Communications v. Go, G.R. No. 175514 (2011)] A denial does not become specific merely because it is qualified by that word [Agton v. CA, G.R. No. L37309 (1982)] 1. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. 2. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. [Sec. 11, Rule 8] MODES OF SPECIFIC DENIAL 1. Absolute denial – A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, set forth the substance of matters upon which he relies to support his denial 2. Partial specific denial – Where a defendant desires to deny only a part of an averment, he shall (a) Specify so much of it as is true and material

3.

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(b) Deny only the remainder Denial by disavowal of knowledge – Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial [Sec. 10, Rule 8; the terms are from 1 Riano 355356, 2014 Bantam Ed.]

Note: Denial by disavowal of knowledge must be availed of with sincerity and in good faith – certainly neither for the purpose of confusing the adverse party as to what allegations of the complaint are really put in issue nor for the purpose of delay [Barnes v. Reyes, G.R. No. L-9531 (1958)]

1. Effect of Failure to make Specific Denials General rule: Material averment in the complaint 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. Allegations as to the amount of unliquidated damages [Sec. 11, Rule 8] 2. Allegations immaterial to the cause of action [1 Regalado 183, citing Worcester v. Lorenzana, G.R. No. L-9435 (1958)], and 3. All allegations in the complaint where no answer has been filed by the defendant [1 Regalado 183, citing Lopez v. Mendezona, G.R. No. 3945 (1908) and Worcester v. Lorenzana, G.R. No. L-9435 (1958)]

2. When a Specific Denial Requires an Oath Specific denial under oath is required for the following a. Denial of the genuineness and due execution of an actionable document [Sec. 8, Rule 8] and b. Denial of allegations of usury [Sec. 11, Rule 8] Note: Under CB Circular No. 905 (1982), the Usury Law is legally inexistent [Medel v. CA, G.R. No. 131622 (1998)]

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evidence. Such reception of evidence may be delegated to the clerk of court. [Sec. 3, Rule 9]

5. Effect of Failure to Plead a. Effect of Failure to Plead Defenses and Objections General rule: Defenses and objections not pleaded either a motion to dismiss or in the answer are deemed waived [Sec. 1, Rule 9] Exceptions: 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, or 3. the action is barred by a prior judgment or by statute of limitations, g. the court shall dismiss the claim [Sec. 1, Rule 9]

b. Failure to Plead a Compulsory Counterclaim and Cross-Claim General rule: A compulsory counterclaim, or a crossclaim, not set up shall be barred [Sec. 2, Rule 9] Exception: 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]

6. Default Failure of the defending party to answer within the time allowed therefor [Sec. 3, Rule 9] Dual stages of default a. Declaration of order of default – If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. b. Rendition of judgment by default – Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit

Order of default Issued by the court on plaintiff’s motion and at the start of the proceedings, for failure of the defendant to seasonably file his responsive pleading [1 Regalado 191, 2010 Ed.]

Judgment by default Rendered by the court following a default order, when it received ex parte plaintiff’s evidence

a. When Declaration of Default is Proper 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]. From the tenor of the Rules, default does not technically occur from the failure of the defendant to attend either the pre-trial or the trial [1 Riano 363, 2014 Bantam Ed.] 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 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 [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]

b. Effect of an Order of Default 1.

2.

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The party declared in default cannot take part in the trial. However, he may still participate as a witness [Cavili v. Florendo, G.R. No. 73039 (1987)] and is entitled to notices of subsequent proceedings [Sec. 3, Rule 9]. The court may either

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Proceed to render judgment granting the claimant such relief as his 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] 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 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 [Otero v. Tan, G.R. No. 200134 (2012)] a.

3.

c. Relief from an Order of Default 1.

A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that a. His failure to answer was due to fraud, accident, mistake or excusable negligence, and b. He has a meritorious defense [Sec. 3(b), Rule 9] “Meritorious defense” means 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)] In such 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]

2.

If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he 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.

3.

REMEDIAL LAW

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.]

If the defendant discovered the default after the judgment 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 defending party was properly declared in default, but it is submitted, however, that certiorari will lie when said parry was improperly declared in default [1 Riano 374, 2014 Bantam Ed.]

d. Effect of Partial Default Partial default takes place when the complaint states a common cause of action against several defendants, and only some of whom answer. 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.

e. Extent of Relief to be Awarded A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor 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 ca use of action, hence the same should be dismissed [1 Regalado 193, 2010 Ed., citing Reyes v. Tolentino, G.R. No. L-29142 (1971)]. On the other hand, in a judgment where an answer was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for [Datu Samad Mangelen v. CA, G.R. No. 88954 (1992)] Note that the defendant, having filed an answer, was not in default in this situation.

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Default in ordinary procedure flowchart

f. Actions Where Default is Not Allowed 1. 2. 3. 4.

5.

Action for annulment or declaration of nullity of marriage [Sec. 3(e), Rule 9] Action for legal separation [Sec. 3(e), Rule 9] Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed [Sec. 6, Rule 65] 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] 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, par. 3, Rule 67]

After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default

If motion denied, defendant allowed to file an answer

If motion granted, the court issues order of default and renders judgment or require plaintiff to submit evidence ex parte

After notice of order and before judgment, a party declared in default may file a motion under oath to set aside the order of default and properly show that (a) the failure to answer was due to FAME, and (b) he has a meritorious defense, i.e., there must be an affidavit of merit [Sec. 3(b), Rule 9, cited in 1 Riano 373, 2014 Bantam Ed.]

Court maintains order of default

Court sets aside order of default and defendant is allowed to file an answer

Case set for pre-trial

If plaintiff proves his allegations, judgment by default will be rendered

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Presentation of plaintiff’s evidence ex-parte

If plaintiff fails proves his allegations, case is dismissed

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F. Filing and Service of Pleadings, Judgments, Final Orders and Resolutions 1. Payment of Docket Fees General rule: 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)]

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.

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.

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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)]

2. Filing v. Service of Pleadings Filing is the act of presenting the pleading or other paper to the clerk of court [Sec. 2, Rule 13] Service is the act of providing a party or, if any party has appeared by counsel, his counsel, with a copy of the pleading or paper concerned [Sec. 2, Rule 13] 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 h. Demand i. Offer of judgment; or j. Similar papers [Sec. 4, Rule 13]

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 damages [Gochan v. Gochan, G.R. No. 146089 (2001)] Page 56 of 481

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Responsive Pleadings complaint [Sec. 5, Rule 11]

3. Periods of Filing of

Pleadings

Responsive Pleadings

Period

Answer to the complaint [Sec. 1, Rule 11]

Within 15 days (unless a different period is fixed by the court)

Service of summons

Within 30 days

Receipt of summons by such entity

Within 15 days

Service of a copy of the amended complaint

Within 10 days

Notice of the order admitting the amended complaint

Answer of a defendant foreign private juridical entity [Sec. 2, Rule 11] Answer to amended complaint as a matter of right [Sec. 3, Rule 11] Answer to amended complaint NOT as a matter of right [Sec. 3, Rule 11] Answer to an amended counterclaim amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-inintervention [Sec. 3, Rule 11] Answer to counterclaim or cross-claim [Sec. 4, Rule 11] Answer to third (fourth, etc.) -party

Reckoning Point

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Period

Reckoning Point

Reply [Sec. 6, Rule 11]

Within 10 days

Service of the pleading responded to

Answer to supplemental complaint [Sec. 7, Rule 11]

Within 10 days (unless a different period is fixed by the court)

Notice of the order admitting the same

Extension of time to plead a. Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. b. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. [Sec. 11, Rule 11]

4. Manner of Filing

How pleadings, appearances, motions, notices, orders, judgments and all other papers are filed: By presenting the original copies thereof, plainly indicated as such a. Personally to the clerk of court or b. By sending them by registered mail [Sec. 3, Rule 13] Personal filing The clerk of court shall endorse on the pleading the date and hour of filing [Sec. 3, Rule 13]

Same as answer to amended complaint

Same as answer to amended complaint

Within 10 days

Service

Same as answer to the complaint

Same as answer to the complaint

Filing by registered mail a. The date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. b. The envelope shall be attached to the record of the case. [Sec. 3, Rule 13] Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission [1 Regalado 228, 2010 Ed.]

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Note: Filing a pleading by facsimile is not sanctioned. But fax was allowed in an extradition case, where a request for provisional arrest, not a pleading, was in issue [Cuevas v. Muñoz, G.R. No. 140520 (2000)] Filing by private carrier If a party avails of a private carrier, the date of the court’s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading [Benguet Electric Cooperative v. NLRC, G.R. No. 89070 (1992)]

5. Modes of Service Service may be made a. Personally or b. By mail [Sec. 5, Rule 13] c. By substituted service [Sec. 8, Rule 13] d. By publication [Sec. 9, Rule 13]

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c. Substituted Service When proper 1. Service cannot be made personally or by mail 2. Office and place of residence of the party or his counsel being unknown [Sec. 8, Rule 13] Papers that may be served through substituted service 1. Pleadings 2. Motions 3. Notices 4. Resolutions, and 5. Other papers [Sec. 8, Rule 13] Judgments, final orders or final resolutions cannot be served by substituted service [1 Regalado 233, 2010 Ed.]

a. Personal service By delivering personally a copy to the party or his counsel, or 2. By leaving a copy in the counsel’s office with his clerk or with a person having charge thereof 3. If no person is found in his office, or his office is not known or he has no office, then by leaving the copy between 8 a.m. and 6 p.m., at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein [Sec. 6, Rule 13] 1.

b. Service by Mail Service by registered mail shall be made by a. Depositing the copy in the post office b. In a sealed envelope c. Plainly addressed to the party or his counsel d. At his office, if known, otherwise at his residence, if known e. With postage fully prepaid, and f. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered Ordinary mail – If no registry service is available in the locality of either the sender or addressee. [Sec. 7, Rule 13]

How 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] When complete At the time of such delivery [Sec. 8, Rule 13]

d. Service of Judgments, Final Orders, or Resolutions General rule: Judgments, final orders or resolutions shall be served either 1. Personally, or 2. By registered mail Exception: When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. [Sec. 9, Rule 13]

e. Priorities in Modes of Service and Filing Whenever practicable, service and filing of pleadings and other papers shall be done personally [Sec. 11, Rule 13]

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Affidavit of the party serving, containing a full statement of the date, place and manner of service Service by ordinary mail – Affidavit of the person mailing of facts showing compliance with Sec. 7, Rule 13 Service by registered mail a. Affidavit of the person mailing of facts showing compliance with Sec. 7, Rule 13 b. Registry receipt issued by the mailing office c.

General Rule: Resort to other modes must be accompanied by a written explanation why the service/filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.

2. 3.

Exception: Papers emanating from the court [Sec. 11, Rule 13]

f. When Service is Deemed Complete 1. 2. 3.

4.

Personal service – upon actual delivery Service by ordinary mail – upon the expiration of 10 days after mailing, unless the court otherwise provides Service by registered mail – upon actual receipt by the addressee, or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier [Sec. 10, Rule 13] Substituted service – At the time of delivery of the copy to the clerk of court, with proof of failure of both personal service and service by mail [Sec. 8, Rule 13]

g. Proof of Filing and Service Proof of filing General rule: The filing of a pleading or paper shall be proved by its existence in the record of the case Exception: If it is not in the record, but 1. is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same 2. if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if not delivered [Sec. 12, Rule 13]

The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee [Sec. 13, Rule 13] Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless ordered by the court in the following circumstances 1. When it is doubtful who the attorney for such party is; or 2. When the lawyer cannot be located; or 3. When the party is directed to do something personally, as when he is ordered to show cause [Retoni, Jr. v. CA, G.R. No. 96776 (1993)] It is a general rule that notice to counsel is notice to parties. This Rule’s application to a given case, however, should be looked into and adopted, according to the surrounding circumstances; otherwise, in the court's desire to make a short cut of the proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It would then be easy for one lawyer to sell one's rights down the river, by just alleging that he just forgot every process of the court affecting his clients, because he was so busy. Under this circumstance, one should not insist that a notice to such irresponsible lawyer is also a notice to his clients [Bayog v. Natino, G.R. No. 118691 (1996)]

Proof of service 1. Personal service a. Written admission of the party served, or b. Official return of the server, or

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G. 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 So that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner [Sec. 1, Rule 10] 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)] As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage [Barfel Development v. CA, G.R. No. 98177 (1993)] 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]

1. Amendments 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 days after it is served [Sec. 2, Rule 10]

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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)]

2. Amendments by Leave of

Court

Substantial amendments may be made only upon leave of court [Sec. 3, Rule 10] Requisites a. Motion for leave of court, accompanied by the amended pleading sought to be admitted [Sec. 9, Rule 15] b. Notice is given to the adverse party c. Parties are given opportunity to be heard [Sec. 3, Rule 10] When amendment may not be allowed a. If it appears to the court that the motion for leave of court was made with intent to delay [Sec. 3, Rule 10] b. If amendment is intended to confer jurisdiction to the court. If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property [PNB v. Florendo, G.R. No. L-62082 (1992)] c. If amendment is for curing a premature or inexistent cause of action. The cause of action must exist at the time the action was begun, and the plaintiff will not be allowed by an amendment to introduce a cause of action which had no existence when the action was commenced [Surigao Mine Exploration v. Harris et al, G.R. No. L-45543 (1939)] Interestingly, Section 3, Rule 10 of the 1997 Rules of Civil Procedure amended the former Rule in such manner that the phrase "or that the cause of action or defense is substantially altered" was stricken-off and not retained in the new Rules. The clear import of such amendment in Section 3, Rule 10 is that under the new Rules, "the amendment may (now) substantially alter the cause of action or defense." This should only be true, however, when despite a substantial change or alteration in the cause of action or defense, the amendments sought to be made shall serve the higher interests of substantial justice, and prevent delay and equally promote the laudable objective of the Rules which is to secure a "just, speedy and inexpensive disposition of every action

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and proceeding [Valenzuela v. CA, G.R. No. 131175 (2012)]

3. Formal Amendments

b. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading [Sec. 6, Rule 10] 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”.

When proper a. Defect in the designation of the parties b. Other clearly clerical or typographical errors [Sec. 4, Rule 10] How made a. Summarily corrected by the court b. At any stage of the action c. At its initiative or on motion d. No prejudice is caused thereby to the adverse party [Sec. 4, Rule 10]

4. Amendments to Conform to

or Authorize Presentation of Evidence

a.

When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. b. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. c. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. d. The court may grant a continuance to enable the amendment to be made [Sec. 5, Rule 10]

5. Supplemental Pleadings a.

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Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented.

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 events Refer to facts existing which have happened at the time of the since the date of the commencement of the pleading sought to be action supplemented [Sec. 6, Rule 10] Either as a matter of right or by leave of court [See Sec. 2 and 3, Rule 10]

Always by leave of court [1 Regalado 211, 2010 Ed.]

Supersedes the pleading that it amends [Sec. 7, Rule 10]

Merely supplements, and exists side-by-side 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 [Sec. 7, Rule 10]

No such requirement exists [Sec. 6, Rule 10]

Supplemental pleadings are not allowed on separate and distinct causes of action but a supplemental pleading may raise a new cause of action as long as it has some relation to the original cause of action set forth in the original complaint [Ada v. Baylon, G.R. No. 182435 (2012)]

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6. Effect of Amended Pleading a.

An amended pleading supersedes the pleading that it amends b. Admissions in the superseded pleadings may be received in evidence against the pleader (as extrajudicial admissions) c. Claims or defenses alleged in the superseded pleading but not incorporated or reiterated in the amended pleading are deemed waived [Sec. 8, Rule 10]

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H. 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 [Sec. 1, Rule 14] When issued 1. Upon the filing of the complaint and 2. Upon the payment of the requisite legal fees [Sec. 1, Rule 14] Contents 1. Summons shall be a. Directed to the defendant 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. A direction that the defendant answer within the time fixed by the ROC, and c. 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] Who may serve summons 1. The sheriff 2. His deputy 3. Other proper court officer, or 4. For justifiable reasons, any suitable person authorized by the court [Sec. 3, Rule 14] The enumeration of persons who may validly serve summons is exclusive [1 Regalado 245, 2010 Ed.]

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1. Nature and Purpose of

Summons in Relation to Actions in personam, in rem, and quasi in rem

Action in personam a. A proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. b. The purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant [Domagas v. Jensen, G.R. No. 158407 (2005)] Purpose of summons in an action in personam 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)] Action in rem Actions against the thing itself. They are binding upon the whole world. "Against the thing" means that resolution of the case affects interests of others whether direct or indirect. It also assumes that the interests — in the form of rights or duties — attach to the thing which is the subject matter of litigation [De Pedro v. Romasan Development Corp., G.R. No. 194751 (2014)] Actions quasi in rem A proceeding brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to

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operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. The judgments therein are binding only upon the parties who joined in the action [Domagas v. Jensen, G.R. No. 158407 (2005)] 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)]

2. Voluntary Appearance Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except where such appearance is precisely to object the jurisdiction of the court over the person of the defendant [Carballo v. Encarnacion, G.R. No. L- 5675 (1953)] General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons [Sec. 20, Rule 14] Exceptions: Conditional appearance to file a motion to dismiss challenging the court’s jurisdiction shall not be deemed a voluntary appearance. a. Special appearance operates as an exception to the general rule on voluntary appearance; b. Objections to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set forth in an unequivocal manner; and
 c. Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution [Philippine Commercial International Bank v. Spouses Dy, G.R. No. 171137 (2009)] Inclusion in the motion to dismiss of grounds aside from lack of jurisdiction over the defendant’s person, shall not be deemed a voluntary appearance [Sec. 20, Rule 14]

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However, seeking affirmative relief other than dismissal of the case is a manifestation of voluntary submission to the court’s jurisdiction. The active participation of a party in the proceedings is tantamount to an invocation of the court’s jurisdiction and a willingness to abide by the resolution of the case, and will bar said party from later on impugning the court’s jurisdiction [Republic v. Sereno, G.R. No. 237428 (2018), citing Philippine Commercial International Bank v. Spouses Dy, G.R. No. 171137 (2009)] Modes of service of summons a. Service in person on defendant [Sec. 6, Rule 14] b. Substituted service [Sec. 7, Rule 14] c. Service by publication [Sec. 14, Rule 14] d. Extraterritorial service [Sec. 15-16, Rule 14] Note: There is no service of summons solely by registered mail except as an additional requirement to service by publication. Where service is made by publication, a copy of the summons and order of the court shall be sent by registered mail to last known address of defendant [Sec. 15, Rule 14]

3. Personal Service How done [Sec. 6, Rule 14] a. By handing a copy of the summons to the defendant in person, or b. If he refuses to receive and sign for it, by tendering it to him Personal Service of Pleadings [Sec. 6, Rule 13] Papers may be served a. By delivering personally a copy to the party or his counsel, or b. By leaving a copy in the counsel’s office with his clerk or with a person having charge thereof c. If no person is found in his office, or his office is not known or he has no office, then by

Personal Service of Summons [Sec. 6, Rule 14]

Summons is served to the defendant in person

Personal Service of Pleadings leaving the copy between 8 a.m. and 6 p.m., at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein

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Personal Service of Summons

4. Substituted Service When allowed If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in Sec. 6, Rule 14 (service in person on defendant) [Sec. 7, Rule 14] How done a. By leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein; or b. By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof Requisites It is necessary to establish the following a. Indicate the impossibility of service of summons within a reasonable time b. Specify the efforts exerted to locate the defendant, and c. State that the summons was served upon: 1. a person of sufficient age and discretion who is residing in the address, or 2. a person in charge of the office or regular place of business, of the defendant d. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return [Sps. Tiu v. Villar, A.M. No. P-11-2986 (2012)] 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)]

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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)] Person of sufficient age and discretion a. A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. b. "Discretion" is defined as "the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed". c. Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of

a. Service upon Defendant Whose Identity or Whereabouts is Unknown Defendant is designated as an unknown owner, or the like, or 2. His whereabouts are unknown and cannot be ascertained with diligent inquiry [Sec. 14, Rule 14] 1.

How service is effected 1. By publication, 2. In a newspaper of general circulation, and 3. In such places, and 4. For such time as the court may order [Sec. 14, Rule 14] Sec. 14 applies to “any action,” making no distinction between actions in rem, in personam and quasi in rem.

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confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons [Prudential Bank v. Magdamit, G.R. No. 183795 (2014)] Person in charge Must be the one managing the office or business of 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 [Prudential Bank v. Magdamit, G.R. No. 183795 (2014)]

5. Constructive Service (by

Publication)

a.

Service upon defendant whose identity or whereabouts are unknown [Sec. 14, Rule 14] b. Service upon a resident temporarily out of the Philippines [Sec. 16, Rule 14] c. Extraterritorial service [Sec. 15, Rule 14] court, be also effected out of the Philippines, as under Sec 15, Rule 14 (extraterritorial service) [Sec. 16, Rule 14] How summons served 1. Service in person on defendant under Sec. 6, Rule 14, or 2. Publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or 3. In any other manner the court may deem sufficient [Sec. 15, Rule 14] Unlike in Sec. 15, Rule 14, service may be effected in this manner for “any action,” not distinguishing between actions in rem, in personam, and quasi in rem. Even without Sec. 15, Rule 14, as the defendant has a residence in the Philippines, summons may also be served through substituted service under Sec. 7, Rule 14. [1 Riano 391, 2011 Ed.]

b. Service upon Residents Temporarily Outside the Philippines When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of

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His legal guardian or if he has none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff b. Service may also be made on his father or mother [Sec. 10, Rule 14] 2.

6. Extraterritorial Service of

Summons, When Allowed

a. b.

When the defendant does not reside and is not found in the Philippines, and The action 1. Affects the personal status of the plaintiff or 2. 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 3. In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 4. The property of the defendant has been attached within the Philippines [Sec. 15, Rule 14]

Service may, by leave of court, be effected out of the Philippines a. By personal service as under Sec. 6, Rule 14, or b. By publication in a newspaper of general circulation in such places and for such time as court may order, in which case, a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or c. In any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time within which defendant must answer, which shall not be less than 60 days after notice. [Sec. 15, Rule 14]

7. Service upon Prisoners and

Minors

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 who is deemed deputized as a special sheriff for said purpose [Sec. 9, Rule 14] Upon minors [Sec. 9, Rule 14] When the defendant is a minor a. Service shall be made upon 1. The minor defendant personally; and

OTHER DEFENDANTS 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. [Sec. 8, Rule 14] Upon incompetents Service is effected upon a. The defendant personally, and b. His legal guardian or if he has none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. [Sec. 10, Rule 14] Upon a 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. [Sec. 11, Rule 14] Upon a foreign private juridical entity Service may be made on a. When the defendant is transacting business in the Philippines: 1. Upon the resident agent; or 2. If there be no such agent, on the government official designated by law to that effect, or 3. On any of its officers or agents within the Philippines b. When the defendant is not registered in the Philippines or has no resident agent, with leave of court

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By personal service coursed through the appropriate court in the foreign country with the assistance of the DFA By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the defendant’s last known address; By facsimile or any recognized electronic means that can generate proof of service, or By such other means as the court may in its discretion direct. [Sec. 12, Rule 14, as amended by A.M. No. 11-3-6-SC]

Upon public corporations Service may be effected a. When the defendant is the Republic of the Philippines, on the Solicitor General; b. In case of a province, city, municipality, or like public corporations 1. Its executive head, or 2. Such officer/s as the law or the court may direct. [Sec. 13, Rule 14]

8. Proof of Service Return When the service has been completed, the server shall a. Within 5 days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel, and b. Return the summons to the clerk who issued it, accompanied by proof of service [Sec. 4, Rule 14] It is required to be given to the plaintiff’s counsel in order to enable him a. To move for a default order should the defendant fail to answer on time [Sec.3, Rule 9], or b. In case of non-service, so that alias summons may be sought [Sec. 5, Rule 14] [1 Regalado 245, 2010 Ed.] Alias summons a. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service, within five (5) days therefrom.

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In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. [Sec. 5, Rule 14] b.

Proof of service shall a. Be made in writing by the server and b. Set forth 1. the manner, place, and date of service; 2. any papers which have been served with the process, and 3. 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 deputy [Sec. 18, Rule 14] If service has been made by publication, service may be proved by a. The affidavit of the printer, his foreman or principal clerk; or of the editor, business or advertising manager b. A copy of the publication attached to the affidavit, and c. An affidavit showing the deposit of a copy of the summons and order for publication in the post office, with postage prepaid, directed to the defendant by registered mail to the last known address [Sec. 18, Rule 14] Effect of defect of proof of service a. Where sheriff’s return is defective, 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)]. 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 is no valid summons, 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)].

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I. Motions

d. Notice of Hearing and Hearing of Motions

1. Motions in general a. Definition of a Motion A motion is any application for relief other than by a pleading [Sec. 1, Rule 15]

b. Motions v. Pleadings Motion

Pleading Contains allegations of Contains allegations of the ultimate facts [Sec. facts [Sec. 3, Rule 15] 1, Rule 8] Prays for a relief [Sec. 1, Rule 15] Generally in writing Always in writing [Sec. (with some exceptions) 1, Rule 6] [Sec. 2, Rule 15] General Rule: A motion does not pray for judgment [1 Riano 339, 2005 Ed.] Exceptions: 1. Motion for judgment on the pleadings [Sec. 1, Rule 34] 2. Motion for summary judgment [Sec. 1, Rule 35] 3. Motion for dismissal on demurrer to evidence [Sec. 1, Rule 33]

c. Contents and Form of Motions Contents 1. Relief sought to be obtained, and 2. Grounds upon which it is based, and 3. With supporting affidavits and other papers if a. Required by the ROC, or b. Necessary to prove facts alleged therein [Sec. 3, Rule 15] Form General rule: In writing Exceptions: Motions made in 1. Open court or 2. The course of a hearing or trial [Sec. 2, Rule 15]

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Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant [Sec. 4, Rule 15] General rule: Motions shall be scheduled for hearing 1. On Friday afternoons; or 2. if Friday is a non-working day, in the afternoon of the next working day Exception: Motions which require immediate action [Sec. 7, Rule 15] Notice of hearing Notice shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than 10 days after the filing of the motion [Sec. 5, Rule 15] Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least 3 days before the date of hearing, unless the court for good cause sets the hearing on shorter notice [Sec. 4, Rule 15] Purpose To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion [J.M.Tuason & Co., Inc. v. Magdangal, G.R. No. L-51458 (1962)] Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed [Provident International Resources v. CA, G.R. No. 119328 (1996)] Exceptions to the three-day notice Rule: 1. Ex parte motions 2. Urgent motions 3. Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties 4. Motions for summary judgment which must be served at least 10 days before its hearing [Sec. 3, Rule 35] [1 Regalado 264, 2010 Ed.]

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Proof of service No written motion set for hearing shall be acted upon by the court without proof of service thereof [Sec. 6, Rule 15]

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for extension of time to file a record on appeal. Nonetheless, a notice of time and place of hearing is mandatory for motions for new trial or motion for reconsideration [Spouses Rustia v. Rivera, G.R. No. 156903 (2006)]

Exceptions: 1. If the motion is one which the court can hear ex parte; and 2. If it would not cause prejudice to the adverse party [Anama v. Philippine Savings Bank, G.R. No. 187021 (2012)]

g. Pro-forma Motions

e. Omnibus Motion Rule

Examples of pro forma motions: 1. A motion without a notice of hearing [1 Riano 426, 2011 Ed.] 2. A motion which was not set for hearing [1 Riano 369, 2011 Ed.] 3. A motion which was not served in the manner provided in Sec 4, Rule 15 [1 Riano 369, 2011 Ed.] 4. A motion for reconsideration that does not specify the findings or conclusions in the judgment which are not supported by the evidence or contrary to law, making express reference to the pertinent evidence or legal provisions [1 Riano 560, 2011 Ed.] 5. A second motion for reconsideration [1 Riano 560, 2011 Ed.] 6. A motion for reconsideration which failed to substantiate the alleged errors or which merely alleged that the decision in question was contrary to law [1 Riano 560, 2011 Ed.] 7. A motion for new trial which is preceding motion for new trial or motion for reconsideration which has already been denied [1 Regalado 427, 2010 Ed.] 8. A second motion for new trial which alleges a ground which already existed, was available and could have been alleged in the first motion for new trial which was denied [1 Regalado 427, 2010 Ed.] 9. A motion for new trial It is based on the ground of fraud, accident, mistake, or excusable negligence but does not specify the facts constituting such grounds and/or is not accompanied by an affidavit of merits [1 Regalado 428, 2010 Ed.]

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. 8, 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 o fAppeals, G.R. No. 104875 (1992)] Exceptions: 1. Lack of jurisdiction over subject matter 2. Litis pendentia 3. Res judicata 4. Prescription [Sec. 8, Rule 15; icow Sec. 1, Rule 9]

f. Litigated and Ex Parte motions Litigated motions One which requires the parties to be heard before a ruling on the motion is made by the court; written motions are generally litigated motions [1 Riano 368, 2011 Ed.]

Ex parte motions

One which does not require such ruling, and upon which the court may act without prejudicing the rights of the other party [1 Riano 368, 2011 Ed.] Section 4 lays the general rule that all written motions shall be set for hearing by the movant, except the non-litigated motions or those which may be acted upon by the court without prejudicing the rights of the adverse party. These ex parte motions include a motion for extension of time to file pleadings, motion for extension of time to file an answer, and a motion

A pro forma motion is one which does not satisfy the requirements of the Rules and one which will be treated as a motion intended to delay the proceedings [Marikina Development Corporation v. Flojo, G.R. No. 110801 (1995)]

However, where the circumstances of a case do not show an intent on the part of the pleader to merely delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate

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his arguments in a different light, the courts should be slow to declare the same outright as pro forma [Guerra Enterprises Co. v. CFI, L-28310 (1970)]

2. Motion 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 with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading [Sec. 1, Rule 12] 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. L-30380 (1973)]

a. Purpose and When Applied For Purpose: To enable the movant to prepare his responsive pleading [Sec. 1, Rule 12]. 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.] When applied for 1. Before responding to a pleading 2. If the pleading is a reply, within 10 days from service thereof [Sec. 1, Rule 12] 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] 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)] What cannot be done in a bill of particulars 1. To supply material allegations necessary to the validity of a pleading 2. To change a cause of action or defense stated in the pleading

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To state a cause of action or defense other than the one stated 4. To set forth the pleader’s theory of his cause of action or a Rule of evidence on which he intends to reply 5. To furnish evidentiary information [Virata v. Sandiganbayan, G.R. No. 103527 (1993)] 3.

b. Action 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]

c. 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 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 a. Order the striking out of the pleading or the portions thereof to which the order is directed, or b. Make such 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 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.]

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c.

d. Effect on the Period to File 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 days in any event [Sec. 5, Rule 12]

3. Motion to Dismiss A motion to dismiss under Rule 16 is a motion filed by the defending party against the complaint or against any pleading asserting a claim. Thus, the original defendant may file a motion to dismiss the complaint of the original plaintiff. A plaintiff may also file a motion to dismiss the defendant’s counterclaim and a defendant may file a motion to dismiss a co-defendant’s cross-claim. A third-party defendant may also file a motion to dismiss a thirdparty complaint filed by the original defendant against him [1 Riano 465-466, 2005 Ed.] The motion hypothetically admits the truth of the factual allegations stated in the complaint [1 Riano 424, 2011 Ed.]. It is not a responsive pleading. It is not a pleading at all. It is merely a motion [1 Riano 423, 2011 Ed.]. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections then available [Sec. 8, Rule 15]. Types of dismissal of action a. Upon Motion to Dismiss under Rule 16 b. Dismissal of the action either upon notice by the plaintiff or upon his own motion under Secs. 1 and 2, Rule 17

Dismissal of the action under Sec. 3, Rule 17 for causes attributable to the plaintiff d. Upon demurrer to evidence after plaintiff has presented his evidence under Rule 33 e. Dismissal of an appeal under Rule 50 [1 Riano 465-466, 2005 Ed.] Period to File General rule: Within the time for but before filing of the answer to the complaint or pleading asserting a claim [Sec. 1, Rule 16] Exceptions: a. For special reasons which may be allowed even after trial has begun, a motion to dismiss may be filed b. The court has allowed the filing of a motion to dismiss where the evidence that would constitute a ground for dismissal was discovered during trial General rule: A court may not dismiss a case motu propio, unless a motion to dismiss is filed by a party. Exceptions: a. Upon the grounds stated in Sec. 1, Rule 9: 1. lack of subject matter jurisdiction 2. res judicata 3. litis pendentia 4. prescription b. Due to fault of the plaintiff, under Sec. 3, Rule 17; c. Pursuant to Sec. 4, Revised Rule on Summary Procedure: dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action

a. Grounds 1.

Lack of jurisdiction over the person of the defendant 2. Lack of jurisdiction over the subject matter of the claim 3. Improper venue 4. Plaintiff’s lack of legal capacity to sue 5. Litis pendentia 6. Res judicata 7. Prescription 8. Failure to state a cause of action 9. Extinguished claim 10. Unenforceable claim under the Statute of Frauds 11. Non-compliance with a condition precedent for filing claim [Sec. 1, Rule 16]

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Except in those cases where the court may dismiss a case motu proprio, an action cannot be dismissed on a ground not alleged in the motion therefor even if said ground, e.g., prescription, is provided for in Rule 16 [1 Regalado 272, 2010 Ed,, citing Malig v. Bush, G.R. No. L-22761 (1969)], unless such fact of prescription appears in the allegations of the complaint or in plaintiffs' evidence [1 Regalado 272, 2010 Ed,, citing Garcia v. Mathis, G.R. No. L-48557 (1980)]. With much more reason should an order of dismissal be nullified if it is based on a ground not authorized by Rule 16, i.e., for supposedly being moot and academic [1 Regalado 272, 2010 Ed,, citing Borje v. CFI of Misamis Occidental, G.R. No. L-49315 (1979)]. Lack of jurisdiction over the person of the defendant In La Naval Drug Corp. v. CA [G.R. No. 103200 (1994)], the Court held that while lack of jurisdiction over the person of defendant may be duly and seasonably raised, his voluntary appearance in court without qualification is a waiver of such defense. Sec. 20, Rule 14 makes a categorical statement that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed voluntary appearance on his part. Lack of jurisdiction over the subject matter General rule: Lack of jurisdiction over the subject matter may be raised at any stage of the proceedings [North Greenhills Association, Inc. v. Morales, G.R. No. 222821 (2017)] When it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the claim even without a motion to dismiss [Sec. 1, Rule 9; 1 Regalado 185, 2010 Ed.] A motion to dismiss on this ground may also be raised a. Before answer b. After answer is filed c. After hearing had commenced d. At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer [1 Riano 81, 2011 Ed.]

REMEDIAL LAW

Note: The Rule refers to the subject matter of each particular claim and not only to that of the suit. Hence, other initiatory pleadings included [1 Regalado 275, 2010 Ed.] Exceptions: a. Estoppel Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. While the issue of jurisdiction may be raised at any time, he is estopped as it is tantamount to speculating on the fortunes of litigation [Crisostomo, et al. v. CA, G.R. No. 27166 (1970)] b. Estoppel by laches Laches is failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it [Tijam v. Sibonghanoy, G.R. No. L-21450 (1968)] i. Lack of jurisdiction must have been raised so belatedly as to warrant the presumption that the party entitled to assert it had abandoned or declined to assert it. ii. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which the factual milieu is analogous to that in Tijam v. Sibonghanoy [Figueroa v. People, G.R. No. 147406 (2008), citing Francel Realty Corporation v. Sycip, G.R. No. 154684 (2005)] Improper venue Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid [Diaz v. Adiong, G.R. No. 106847 (1993)] Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition [Enriquez v. Macadaeg, G.R. No. L-2422 (1949)] Plaintiff has no legal capacity to sue The plaintiff lacks legal capacity to sue: a. When he does not possess the necessary qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights); b. When he does not have the character which he claims, which is a matter of evidence (e.g. when

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he is not really a duly appointed administrator of an estate) [Recreation and Amusement Association of the Philippines v. City of Manila, G.R. No. L-7922 (1957)] Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action [Columbia Pictures, Inc. v. CA, G.R. No. 110318 (1996)] The issue of plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceedings below [Univ. of Pangasinan Faculty Union v. Univ. of Pangasinan, G.R. No. 64821-23 (1993)]

Litis pendentia

Requisites a. Identity of parties, or at least such as representing the same interest in both actions; b. Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and c. Identity of the two cases such that judgment in one would amount to Res judicata on the action under consideration [Film Development Council of the Philippines v. SM Prime Holdings, Inc., G.R. No. 197937 (2013)] The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass [Vitrionics Computers v. RTC, G.R. No. 104019 (1993)]

Res judicata

Two concepts of res judicata a. Bar by prior judgment [Sec. 47(b), Rule 39] Judgment on the merits in the first case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. b. Conclusiveness of judgment [Sec. 47(c), Rule 39] The second action is upon a different claim or demand, the judgment in the first case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.

REMEDIAL LAW

[Topacio v. Banco Savings and Mortgage Bank, G.R. No. 157644 (2010)] Requisites for “bar by prior judgment” a. Former judgment or order must be final b. The judgment or order must be on the merits c. The decision must have been rendered by a court having jurisdiction over the subject matter and the parties d. There must be, between the two actions, identity of 1. of parties 2. of subject matter, and 3. of causes of action [Topacio v. Banco Savings and Mortgage Bank, G.R. No. 157644 (2010)] The test of identity of cause of action lies not in the form of the action but on whether or not the same evidence would support and establish the former and the present causes of action [DBP v. Pundogar, G.R. No. 96921 (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of a. Public policy and necessity makes it the interest of the State that there should be an end to litigation b. The hardship on the individual that he should be vexed twice for the same cause [Nabus v. CA, G.R. No. 91670 (1991)] Statute of limitations/prescription Prescription applies only when the complaint on its face shows that indeed the action has already prescribed [1 Regalado 280, 2010 Ed.] If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription [1 Regalado 280, 2010 Ed.] Prescription Concerned with the fact of delay

A matter of time

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Laches Concerned with the effect of delay A question of inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the

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Prescription

Laches property or the relation of the parties Statutory Not statutory Applies at law Applies in equity Not based on fixed Based on fixed time time [Agra v. Philippine National Bank, G.R. No. 133317 (1999)] Defense of prescription is waived and cannot be considered on appeal if not raised in the trial court [Ramos v. Osorio, G.R. No. L-27306 (1971)] However, if the allegations of the complaint, or evidence presented, clearly indicate that the action has prescribed, or where there is no issue in fact as to prescription, defense of prescription is not deemed waived by failure to allege the same [Chua Lamko v. Dioso, G.R. No. L-6293 (1955)] Estoppel and prescription cannot be invoked against the State [Republic v. CA, G.R. No. 116111 (1999)] A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed [Sison v. McQuaid, G.R. No. L-6304 (1953)] The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable [Sec. 3, Rule 16]. Thus: a. Evidence may be received in support of the motion under Sec. 2, Rule 16; or b. The motion to dismiss should be denied without prejudice to the complaint’s dismissal if evidence disclose that the action had already prescribed [Sec. 1, Rule 9] Complaint states no cause of action Failure to state a cause of action and lack of cause of action are distinct grounds to dismiss a particular action. The former refers to the insufficiency of the allegations in the pleading, while the latter to the insufficiency of the factual basis for the action. Dismissal for failure to state a cause of action may be raised at the earliest stages of the proceedings through a motion to dismiss under Rule 16, while dismissal for lack of cause of action may be raised any time after the questions of fact have been resolved on the basis of stipulations, admissions or evidence presented by the plaintiff.

REMEDIAL LAW

A complaint states a cause of action if it sufficiently avers the existence of the three (3) essential elements of a cause of action, namely: (a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (b) an obligation on the part of the named defendant to respect or not to violate such right; and (c) an act or omission on the part of the named defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an action for recovery of damages. If the allegations of the complaint do not state the concurrence of these elements, the complaint becomes vulnerable to a motion to dismiss on the ground of failure to state a cause of action. It is well to point out that the plaintiff’s cause of action should not merely be "stated" but, importantly, the statement thereof should be "sufficient." This is why the elementary test in a motion to dismiss on such ground is whether or not the complaint alleges facts which if true would justify the relief demanded. As a corollary, it has been held that only ultimate facts and not legal conclusions or evidentiary facts are considered for purposes of applying the test. This is consistent with Sec. 1, Rule 8 which states that the complaint need only allege the ultimate facts or the essential facts constituting the plaintiff’s cause of action. A fact is essential if they cannot be stricken out without leaving the statement of the cause of action inadequate. Since the inquiry is into the sufficiency, not the veracity, of the material allegations, it follows that the analysis should be confined to the four corners of the complaint, and no other. [Zuniga-Santos v. Santos-Gran, G.R. No. 197380 (2014)] General rule: In a motion to dismiss, a defendant hypothetically admits the truth of the material allegations of the ultimate facts contained in the plaintiff's complaint. Exceptions: A motion to dismiss a. does not admit the truth of mere epithets of fraud b. nor allegations of legal conclusions c. nor an erroneous statement of law d. nor mere inferences or conclusions from facts not stated e. nor mere conclusions of law f. nor allegations of fact the falsity of which is subject to judicial notice g. nor matters of evidence h. nor surplusage and irrelevant matter

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nor scandalous matter inserted merely to insult the opposing party j. nor to legally impossible facts k. nor to facts which appear unfounded by a record incorporated in the pleading, or by a document referred to, and l. nor to general averments contradicted by more specific averments [NM Rothschild & Sons (Australia) Limited v. Lepanto Consolidated Mining Company, G.R. No. 175799 (2011)] i.

If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits [The World Wide Insurance & Surety Co., Inc. v. Manuel, G.R. No. L8042 (1955)] If the suit is not brought against the real party-ininterest, a motion to dismiss may be filed on the ground that the complaint states no cause of action [Tanpinco v. IAC, G.R. No. 76225 (1992)] Complaint states no cause of action Insufficiency of allegations in the pleading May be raised in a motion to dismiss under Rule 16

Lack of cause of action Insufficiency of factual basis for the action

REMEDIAL LAW

c.

An agreement made in consideration of marriage, other than a mutual promise to marry d. An agreement for the sale of goods, chattels or things in action, at a price not less than PHP 500, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum e. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein f. A representation as to the credit of a third person Unlike a motion to dismiss on the ground that the complaint states no cause of action, a motion invoking the Statute of Frauds may be filed even if the absence of a cause of action does not appear on the face of the complaint. Such absence may be proved during the hearing of the motion to dismiss on said ground [Yuviengco et al. v. Dacuycuy, etc., et al., G.R. No. L-55048 (1981)] Non-compliance with a condition precedent

May be raised at any time

Dismissal due to lack Dismissal due to failure of cause of action is to state a cause of made after questions of action can be made at fact have been resolved the earliest stages of an on the basis of action stipulations, admissions or evidence presented [Aquino v. Quiazon, G.R. No. 201248 (2015) Claim extinguished That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished [Sec. 1(h), Rule 16] Unenforceable claim under the statute of frauds Art. 1403(2) of the Civil Code requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit a. An agreement that by its terms is not to be performed within a year from the making thereof b. A special promise to answer for the debt, default, or miscarriage of another

Conditions precedent Common usage refers to conditions precedent as matters which must be complied with before a cause of action arises. When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading [1 Riano 333, 2014 Bantam Ed.] Examples of conditions precedent: a. A tender of payment is required before making a consignation [Art. 1256, CC] 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]

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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.]

After the hearing, the court may: 1. Dismiss the action/claim 2. Deny the motion, or 3. Order the amendment of the pleading [Sec. 3, Rule 16]

Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action [Pineda v. CFI Davao, et al., G.R. No. L-12602 (1961)]

The court cannot defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly state the reasons therefor [Sec. 3, Rule 16]

A complaint may be dismissed by the court, motu proprio, for non-exhaustion of administrative remedies since it affects the cause of action [Municipality of Hinabañgan v. Municipality of Wright, G.R. No. L-12603 (1960)]

c. Remedies of Plaintiff When the Complaint is Dismissed

Where the complaint does not state that it is one of the excepted cases, or it does not allege prior availment of conciliation process, or it does not have a certification that no conciliation or settlement had been reached under P.D. 1508, case should be dismissed on motion [Morata v. Go, et al., G.R. No. L62339 (1983)] Where the defendant had participated in the trial court without any invocation of PD 1508, and the judgment therein had become final and executory, but said defendant thereafter sought the annulment of the decision for alleged lack of jurisdiction, the same was denied under the doctrine of estoppel and laches [Royales, et al., v. IAC, G.R. No. L-65072 (1984)]

b. Resolution of Motion A motion to dismiss is a litigated motion and should be heard [1 Riano 487, 2014 Bantam Ed.] 1. In the hearing, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved if such evidence is available at the time of the hearing 2. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same [Sec. 2, Rule 16] Lack of formal hearing is not fatal when the issues raised were fully discussed in the motion and opposition [Castillo v. CA, G.R. No. L-52008 (1988)]

If the motion is granted, the complaint is dismissed. The plaintiff has several options: 1. Depending upon the ground for the dismissal of the action, the plaintiff may simply refile the complaint (e.g. if the ground for dismissal was anchored on improper venue) 2. He may appeal from the order of dismissal where the ground relied upon is one which bars the refiling of the complaint like res judicata, prescription, extinguishment of the obligation or violation of the statute of frauds [Sec. 5, Rule 16]. Since the complaint cannot be refiled, the dismissal is with prejudice. 3. The plaintiff may also avail of a petition for certiorari. This remedy is available if the court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice [1 Riano 485-486, 2014 Bantam Ed.] Note: Following the tenor of Sec. 1(g) of Rule 41, an order dismissing a complaint for lack of jurisdiction over the subject matter is a dismissal without prejudice and, hence, no appeal may be had from the order of dismissal. Despite Sec. 1, Rule 41, appeal may, nevertheless, be taken from the order dismissing an action for lack of jurisdiction over the subject matter in a situation contemplated under Sec. 8, Rule 40 [1 Riano 485, 2014 Ed.]

d. Remedies of Defendant When the Motion is Denied If the motion is denied, the movant shall file his answer

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Within the balance of the period prescribed under Rule 11 to which he was entitled at the time of serving his motion, 2. But not less than 5 days in any event, Computed from his receipt of the notice of the denial [Sec. 4, Rule 16]

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1.

If the pleading is ordered to be amended, the movant shall file his answer 1. Within the period prescribed by Rule 11, counted from service of amended pleading, 2. Unless a longer period is prescribed by the court [Sec. 4, Rule 16] As a rule, the filing of an answer and going through the usual trial process, and later, the filing of an answer and going through the usual trial process, and later, the filing of a timely appeal form an adverse judgment are the proper remedies against a denial of a motion to dismiss The filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The order of denial, being interlocutory, is not appealable by express provision of Sec. 1(b), Rule 41. [1 Riano 483, 2014 Bantam Ed.]

e. Effect of Dismissal of Complaint on Certain Grounds An order granting a motion to dismiss shall bar the refiling of the same action or claim if the dismissal is based on the following grounds 1. The cause of action is barred by a prior judgment [Sec. 1(f), Rule 16] 2. The cause of action is barred by the statute of limitations [Sec. 1(f), Rule 16] 3. The claim or demand has been paid, waived, abandoned, or otherwise extinguished [Sec. 1(h), Rule 16] 4. The claim on which the action is founded is unenforceable under the Statute of Frauds [Sec. 1(i), Rule 16] [Sec. 5, Rule 16, cited in 1 Riano 486, 2014 Bantam Ed.] The remedy is to file an appeal because, by the clear language of Sec. 5, Rule 16, the dismissal is subject to the right of appeal [1 Riano 486, 2014 Bantam Ed.]

f. When grounds pleaded as affirmative defenses If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as an affirmative defense and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. 2. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. [Sec. 6, Rule 16] 1.

g. Bar by Dismissal General rule: The action/claim may be refiled. Exception: An order granting a motion to dismiss based on 1. Res judicata 2. Prescription 3. Extinguishment of the claim/demand, and 4. Unenforceability under the Statute of Frauds, shall bar the refiling of the same action or claim [Sec. 5, 1(f), (h), (i), Rule 16] Distinguished from Demurrer to Evidence under Rule 33 Motion to Dismiss Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him If denied, defendant must file an answer, or else he may be declared in default If granted, plaintiff may appeal or if subsequent case is not

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Demurrer to Evidence Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed for the dismissal of the case only after the plaintiff has completed the presentation of his evidence [Sec. 1, Rule 33] If denied, defendant may present evidence [Sec. 1, Rule 33] If granted, but on appeal the order of dismissal is reversed he

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barred, he may re-file the case

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shall be deemed to have waived the right to present evidence [Sec. 1, Rule 33] [1 Regalado 270-271, 2010 Ed.]

REMEDIAL LAW

J. Dismissal of Actions 1. Dismissal upon Notice by

the Plaintiff; Two Dismissal Rule

Dismissal by plaintiff as a matter of right a. A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of 1. The answer, or 2. A motion for summary judgment b. 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.] The requirement requiring an order confirming the dismissal is in keeping with the respect due the court [1 Herrera 1056, 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.] 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 Applies when the plaintiff has a. Twice dismissed actions b. Based on or including the same claim c. In a court of competent jurisdiction [1 Riano 490, 2014 Bantam Ed.]

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The notice of dismissal operates as an adjudication upon the merits [Sec. 1, Rule 17]

2. Dismissal upon Motion of

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 counter-claim in a separate action unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action [Sec. 2, Rule 17] 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.]

3. Dismissal Due to Fault of

the 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 a. Fails to appear on the date of the presentation of his evidence in chief on the complaint 1. 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 cross-examine and to object to the admissibility of evidence [Jalover v. Ytoriaga, G.R. No. L-35989 (1977)] 2. Since plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of defendant or other parties’ evidence, or even at rebuttal or subsequent stages, is not a ground for dismissal.

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Fails to prosecute his action for an unreasonable length of time) 1. The test for dismissal of a case due to failure to prosecute is WON, 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)] 2. 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. (1954)] 3. 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 [Goldloop Properties Inc. v. CA, G.R. No. 99431 (1992)] c. Fails to comply with the ROC or any court order. 1. Failure to comply with a court order is ground for dismissal of the case [1 Regalado 307, 2010 Ed., citing Aranico-Robino v. Aquino, G.R. No. L-46641 (1977)] 2. Dismissal for failure to comply with order to amend complaint to make claims asserted more definite is ground for dismissal [Santos v. General Wood Craft, G.R. No. L-28996 (1982)] 3. Failure to comply with an order to include indispensable parties is ground for dismissal [Aranico-Rubino v. Aquino, G.R. No. L-46641 (1977)] 4. The failure to comply with order of new judge to recall witness so he may observe demeanor is sufficient ground for dismissal [Castillo v. Torres, G.R. No. 9181 (1915)] 5. The failure of the parties to submit a compromise agreement within period granted to them by court is not a ground for dismissal [Goldloop Properties Inc. v. CA, G.R. No. 99431 (1992)] 6. Dismissal is improper where a 3rd party complaint has been admitted and the 3rd party defendant had not yet been summoned [Sotto v. Valenzuela, G.R. No. L12732 (1959)] 7. 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. L34897 (1975)] [Sec. 3, Rule 17] b.

General rule: This dismissal shall have the effect of an adjudication upon the merits

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K. Pre-trial

Exception: Otherwise declared by the court [Sec. 3, Rule 17] 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] Sec. 3, as well as Sec. 6, Rule 16, does not require the defendant to manifest his preference within a 15-day period, as in Sec. 2, Rule 17. The reason is that the motions to dismiss contemplated in Sec. 6, Rule 16 and in Sec. 3, Rule 17 are filed by the defendant who perforce has already deliberated upon the course of action he intends to take on his counterclaim and which he may even manifest right in his motion to dismiss the complaint [1 Regalado 304-305, 2010 Ed.]

4. 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 b. Voluntary dismissal by the claimant by notice as in Sec. 1, Rule 17 shall be made: 1. Before a responsive pleading or a motion for summary judgment is served; or 2. If there is none, before the introduction of evidence at trial or hearing [Sec. 4, Rule 17] a.

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1. 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.]

2. Nature and Purpose Purpose of pre-trial is to consider a. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution b. Simplification of the issues c. Necessity/desirability of amendments to the pleadings d. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof e. Limitation of the number of witnesses f. Advisability of a preliminary reference of issues to a commissioner g. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist h. Advisability/necessity of suspending the proceedings, and i. Such other matters as may aid in the prompt disposition of the action [Sec. 2, Rule 18] Pre-trial is mandatory Pre-trial and its governing Rules are not technicalities which the parties may ignore or trifle with. Pre-trial is essential in the simplification and the speedy disposition of disputes [Tiu v. Middleton, G.R. No. 134998 (1999)]

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A representative appears in his behalf, fully authorized in writing: 1. To enter into an amicable settlement 2. To submit to alternative modes of dispute resolution, and 3. To enter into stipulations/admissions of facts and of documents [Sec. 4, Rule 18] b.

Primary objective Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised [Permanent Concrete Products, Inc. v. Teodoro, G.R. No. L-29766 (1968)] Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other questions on appeal [Caltex v. CA, G.R. No. 97753 (1992)]

3. Notice of Pre-Trial After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial [Sec. 1, Rule 18] a. Within 5 days from date of filing of the reply, plaintiff must promptly move ex parte that the case be set for pre-trial conference. b. If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial [Item I-A-1, A.M. No. 03-1-09-SC] The “last pleading” need not be literally construed as the actual filing of the last pleading. For purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient [Sarmiento v. Juan, G.R. No. L56605 (1983)] The notice of pre-trial shall be served on counsel, or on the party who has no counsel [Sec. 3, Rule 18] 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)]

4. Appearance of Parties;

Effect of Failure to Appear

It is the duty of the parties and their counsel to appear at the pre-trial [Sec. 4, Rule 18] When non-appearance is excused Non-appearance of a party may be excused only if either: a. Valid cause is shown for it

The written special authority 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 a. Of the plaintiff – the action shall be dismissed with prejudice, unless otherwise ordered by the court [Sec. 5, Rule 18] b.

Remedy: Appeal [1 Riano 501, 2014 Bantam Ed.] Of the defendant – the plaintiff shall be allowed to present evidence ex parte, and judgment shall be rendered based thereon [Sec. 5, Rule 18] Remedy: Motion for reconsideration, and if the denial is tainted with grave abuse of discretion, a petition for certiorari [1 Riano 501, 2014 Bantam Ed.]

The non-appearance of defendant in pre-trial is not a ground to declare him in default. Thus, we distinguish Failure to appear by Default by defendant defendant [Sec. 5, [Sec. 3, Rule 9] Rule 18] Upon motion of the claiming party with Not required notice to the defending party Requires proof of Not required failure to answer Court renders Court may render judgment based on the judgment without evidence presented ex receiving evidence parte Judgment by default Judgment ex parte Relief awarded must be the same in nature and No such limitation amount as prayed for in the complaint 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]. From the tenor of the Rules, default does not

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technically occur from the failure of the defendant to attend either the pre-trial or the trial [1 Riano 363, 2014 Bantam Ed.]

5. Pre-Trial Brief; Effect of

Failure to File

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least 3 days before the date of the pre-trial, their respective pre-trial briefs. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial [Sec. 6, Rule 18] Contents a. A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution b. A summary of admitted facts and proposed stipulation of facts c. The issues to be tried or resolved d. The documents or exhibits to be presented, stating the purpose thereof

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A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners, and f. The number and names of the witnesses, the substance of their testimonies, and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses [Item I-A-2, A.M. No. 03-1-09-SC] e.

Remedy of defendant is to file a motion for reconsideration, showing that his failure to file a trial brief was due to fraud, accident, mistake, or excusable negligence. The filing of pre-trial brief is mandatory, and is not excused simply because the defendant was not represented by counsel [Saguid v. CA, G.R. No. 150611 (2003)] No evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown [Item I-A-2, A.M. No. 03-1-09-SC]

6. Distinction between Pre-Trial in a Civil Case and Pre-Trial in a

Criminal Case

Pre-trial in a Civil Case [Rule 18]

Pre-trial in a Criminal Case [Rule 118] After arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused

As to when conducted

After the last pleading has been served and filed [Sec. 1]

As to need of motion As to whether or not mandatory

Duty of the plaintiff to promptly move ex parte that the case be set for pre-trial [Sec. 1]

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

Mandatory [Sec. 2]

Mandatory [Sec. 1]

a. As to effect of failure to appear

Of the plaintiff – the case shall be dismissed with prejudice, unless the court orders b. 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 possibility of an amicable settlement

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

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Exception: If special laws and circulars provide for a shorter period

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, Rule 118] Not in the enumeration to be considered [Sec. 1]

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As to requirement of Pre-Trial Brief

CIVIL PROCEDURE

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

REMEDIAL LAW

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

Shall be recited in the order issued by the court upon the termination of pre-trial [Sec. 7] As agreements admissions made

to of

NOTE: The proceedings during the preliminary conference shall be recorded in the "Minutes of Preliminary Conference" to be signed by both parties and/or counsel [Item IA-3, A.M. No. 03-1-09-SC]

Record of pre-trial The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order [Sec. 7, Rule 18] Contents of pre-trial order a. Matters taken up in the conference b. Action taken thereon c. Amendments allowed on the pleadings d. Agreements/admissions made by the parties as to any of the matters considered e. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried.

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

witnesses (Most Important Witness Rule) [Item I-A5-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]

Effect of pre-trial order The contents of the order shall control the subsequent course of the action, unless a. Modified before trial to prevent manifest injustice [Sec. 7, Rule 18] b. 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)] c. Amendment to conform to evidence [Sec. 5, Rule 10]

One day examination of witness rule The One-Day Examination of Witness Rule, that is, a witness has to be fully 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 cross-examination for justifiable reasons [Item I-A-5-i, A.M. No. 03-1-09-SC] Most important witness rule The court shall determine the most important witnesses to be heard and limit the number of Page 83 of 481

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PRE-TRIAL

NO SETTLEMENT

Agreements made by parties; Amendments to pleading; Schedule of Trial

AMICABLE SETTLEMENT

FAILURE TO APPEAR

If plaintiff is absent when so required to attend, court may dismiss the case

If defendant is absent, court may hear evidence of plaintiff ex parte

TRIAL

If evidence is insufficient to prove plaintiff’s cause of action or defendant’s counterclaim, court rules in favor of either one or dismisses the case

COURT RENDERS DECISION

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L. 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)] Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. 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)]

1. Requisites for intervention The legal interest: 1. In the matter in litigation, or 2. In the success of either of the parties, or 3. An interest against both; or 4. 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 b. Intervention will not unduly delay or prejudice the adjudication of rights of the original parties c. 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)] a.

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 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)]

REMEDIAL LAW

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)]

2. Time to Intervene 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. Motion to intervene b. Attaching a copy of the pleading-in-intervention; and c. Serving the motion and pleading-in-intervention on the original parties [Sec. 2, Rule 19] General rule: Allowance of intervention is discretionary with the court. Exception: When the intervenor is an indispensable party. 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 days from notice of the order admitting the complaint-in-intervention, unless a different period is fixed by the court [Sec. 4, Rule 19]

3. Remedy for the Denial of

the Motion to Intervene

An improper denial of a motion for intervention is correctible 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.

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No. L-26252 (1968) and Macias v. Cruz, G.R. No. L28947 (1973)]

M. Subpoena

Remedy for granting of the motion to intervene On the other hand, an improper granting of a motion for intervention may be controlled by certiorari and prohibition. When the rights of the party seeking to intervene will not be prejudiced by the judgment in the main case and can be fully protected in a separate proceeding, the court may deny the intervention sought [1 Regalado 324, 2010 Ed., citing Pflieder v. De Britanica, G.R. No. L-19077 (1964)]

Definition A process directed to a person requiring him: 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 deposition 2. Also to bring with him any books, documents, or other things under his control [Sec. 1, Rule 21] Subpoena 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]

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

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

Directed to the defendant [Sec. 2, Rule 14]

Tender of kilometrage, attendance fee and, if subpoena duces tecum, of reasonable cost of production required [Sec. 6, Rule 21]

Tender of kilometrage and other fees not required by Rule 14

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] All processes issued by the MTC and MCTC in cases falling within their jurisdiction may be served anywhere in the Philippines without the necessity of certification by the judge of the RTC [Sec. 38(2), B.P. 129] Form and contents 1. Shall state the name of the court and the title of the action or investigation Page 86 of 481

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Shall be directed to the person whose attendance is required 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] 2.

1. 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] 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

2. 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] The subpoena referred to in the first sentence of this section is distinctively called a subpoena ad testificandum. This is the technical and descriptive term for the ordinary subpoena [1 Regalado 330, 2010 Ed.]

3. 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. Tender is made to him of the following: 1. Fees for one day’s attendance; 2. Kilometrage allowed by the ROC; and 3. In the case of subpoena duces tecum, the reasonable cost of producing the books, documents and things demanded.

REMEDIAL LAW

Tender of these amounts need not be made if subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof [Sec. 6, Rule 21] When made: must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance [Sec. 6, Rule 21]

4. Compelling Attendance of

Witnesses; Contempt

The court which issued the subpoena, upon proof of service and failure of witness to attend, may issue a warrant to the sheriff of the province, or his deputy to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse [Sec. 8, Rule 21] Failure by any person without adequate cause to obey a subpoena served upon him shall deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule [Sec. 9, Rule 21] Note: Provisions regarding the compelling of attendance [Sec. 8] and contempt [Sec. 9] shall not apply to a a. Witness who resides more than 100 km from his residence to the place where he is to testify by the ordinary course of travel; or b. Detention prisoner if no permission of the court in which his case is pending was obtained [Sec. 10, Rule 21] 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: “Viatory right” applies only in civil cases, not criminal cases [Genorga v. Quitain, A.M. No. 981-CFI (1977)]

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N. Modes of Discovery

5. Quashing of Subpoena For quashing subpoena duces tecum a. A motion is promptly made and, in any event, at or before the time specified therein b. Grounds 1. Subpoena is unreasonable and oppressive, or 2. Relevancy of the books, documents or things does not appear, or 3. Person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof 4. 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]

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 510, 2014 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 510, 2014 Bantam Ed., citing C.J.S.] 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] 6. Physical and mental examination of persons [Rule 28]

1. Deposition Pending Action;

Deposition before Action or Pending Appeal

a. 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 [1 Riano 511, 2014 Bantam Ed.] Kinds of depositions 1. Depositions pending action [Rule 23] – called deposition de bene esse [1 Regalado 344, 2010 Ed.] 2. Depositions before action or pending appeal [Rule 24] – called depositions in perpetuam rei memoriam [1 Regalado 344, 2010 Ed.] When depositions pending action taken 1. By leave of court, after jurisdiction has been obtained over any defendant or over the property which is the subject of the action 2. Without leave of court after an answer has been served [Sec. 1, Rule 23] Page 88 of 481

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Note: The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes [Sec. 1, Rule 23] Before whom depositions are taken 1. Within the Philippines a. Judge b. Notary public, or c. Any person authorized to administer oaths, as stipulated by the parties in writing [Sec. 14, Rule 23] [Sec. 10, Rule 23] 2. Foreign state or country a. On notice before a secretary of embassy or legation, consul general, consul, viceconsul, or consular agent of the Philippines b. Before such person or officer as may be appointed by commission or under letters rogatory, or c. 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 1. A relative within the 6th degree of consanguinity or affinity, or 2. An employee or counsel of any of the parties, or 3. A relative within the same degree, or employee of such counsel, or 4. 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 the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is at known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time [Sec. 15, Rule 23] 2. After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make any order for protection of the parties and the deponent [Sec. 16, Rule 23]

3. 4. 5.

REMEDIAL LAW

The attendance of the witnesses may be compelled by the use of a subpoena [Sec. 1] 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]. 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]

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 or pending appeal Referred to as perpetuation of testimony (“depositions in perpetuam rei memoriam”) 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 1. Any person who desires to perpetuate a. his own testimony; or b. the testimony of another person 2. 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 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 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

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Asking for an order authorizing the petitioner to take the depositions of the persons sought to be examined 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 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. 3, Rule 24] 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] f.

Use of deposition If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with Secs. 4 and 5 of Rule 23 [Sec. 6, Rule 24] Procedure for deposition pending appeal: 1. If an appeal has been taken from a judgment of a court, including the CA in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. 2. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein.

3.

4.

REMEDIAL LAW

The motion shall state the a. Names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and b. Reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions [Sec. 7, Rule 24]

b. 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 2. Relevant to the subject of the pending action, a. Whether relating to the claim or defense of any other party; 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.

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Specific uses of depositions Deposition

CIVIL PROCEDURE

By whom used

REMEDIAL LAW

Purpose Contradicting or impeaching the testimony of deponent as a witness

Any deposition

Any party

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

An adverse party

Any purpose

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 orally in open court, to allow the deposition to be used;

Deposition of a witness, whether or not a party

[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]

c. When May Objections to Admissibility be Made 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]

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d. When May Taking of Deposition be Terminated or its Scope Limited At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner, as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Sec. 16, Rule 23. 2. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. 3. 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. 4. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. [Sec. 18, Rule 23]

Error and Irregularities relevancy, or materiality of testimony

1.

Effect of errors and irregularities in depositions Error and Effect Irregularities Waived Unless written As to notice for taking a objection is promptly deposition served upon party giving notice Waived Unless made (1) Before taking of Objection to taking a deposition begins or deposition because of (2) As soon thereafter disqualification of as the disqualification officer before whom it is becomes known or to be taken could be discovered with reasonable diligence Not waived by failure Objection to the to make them before competency of a witness or during the taking or competency, of the deposition

Occurring at oral examination and other particulars 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

REMEDIAL LAW

Effect Unless the ground of the objection is one 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

[Sec. 29, Rule 23] Orders of the court for the protection of parties and deponents: 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

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Certain matters shall not be inquired into 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]

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]

2. Written Interrogatories to

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 days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time [Sec. 2, Rule 25]

4. 5.

Adverse Parties

Purpose: To elicit material and relevant facts from any adverse parties [Sec. 1, Rule 25] 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] Written interrogatories v. interrogatories to parties Written Interrogatories to Interrogatories Parties Not served upon the adverse party directly. They are instead Served upon the delivered to the officer adverse party directly designated in the [Sec. 1, Rule 25] notice [Sec. 26, Rule 23] [1 Riano 520, 2014 Bantam Ed.] Service of interrogatories to parties Under the same conditions specified in Sec. 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf [Sec. 1, Rule 25]

Answers as judicial admissions Written interrogatories and the answers thereto must both be filed and served [Sec. 2, Rule 25] Hence, the answers may constitute as judicial admissions [Sec. 4, Rule 129] Form The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them [Sec. 2, Rule 25]

Objections to interrogatories; answers deferred Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable [Sec. 3, Rule 25] Grounds 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.]

a. Consequences of Refusal to Answer 1.

2.

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If a party or an officer or managing agent of a party a. Willfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or b. Fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, The court on motion and notice, may

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Strike out all or any part of any pleading of the party, or b. Dismiss the action or proceeding or any part thereof, or c. Enter a judgment by default against the party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees [Sec. 5, Rule 29] a.

b. Effect of Failure to Serve Written Interrogatories A party not served with written interrogatories may not be compelled by adverse party to: 1. Give testimony in open court; or 2. Give a deposition pending appeal Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice [Sec. 6, Rule 25]

3. 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 For the admission by the adverse party of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request [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] 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]

REMEDIAL LAW

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)]

a. Implied Admission by Adverse Party 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 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 as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such obligations are resolved, which resolution shall be made as early as practicable [Sec. 2, Rule 26]

b. 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.

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Refusal to answer after being directed by the court would constitute contempt of that court [Sec. 2, Rule 29] Refusal to obey to an order to answer would also allow the court to make such orders regarding the refusal as are just, and among others the following 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]

c. 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]

d. Effect of Failure to File and Serve Request for Admission A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts unless otherwise allowed by the court for good cause shown and to prevent a failure of justice [Sec. 5, Rule 29]

4. Production or Inspection of

Documents or Things

a.

Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to

REMEDIAL LAW

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 2. 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 b. 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] 1.

Production of documents v. subpoena duces

tecum

Production or inspection of documents Limited to the parties of the action [Sec. 1, Rule 27] Issued upon motion of any party [Sec. 1, Rule 27] Must show good cause [Sec. 1, Rule 27]

May be quashed for lack of good cause shown

Disobedience would allow court to make such orders in regard to the refusal as are just, and among others, an order refusing to allow the disobedient party to support or oppose designated claims or defenses or

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Subpoena duces tecum May be directed to nonparty [Sec, 1, Rule 21 refers to “a person”] May be issued upon ex parte application Need not show good cause [see Secs. 3 and 4, Rule 21] Grounds for quashal (1) Unreasonable, oppressive, irrelevant (2) Failure to advance reasonable costs of production [Sec. 4, Rule 21]

Disobedience constitutes contempt of court [Sec. 9, Rule 21]

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Production or inspection of documents prohibiting him from introducing in evidence designated documents or things or items of testimony [Sec. 3(b), Rule 29]

Subpoena duces tecum

The production of documents affords more opportunity for discovery than a subpoena duces tecum as, in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced. The inspection of land and other real property for the purposes authorized by Rule 27 also avoids the need for ocular inspection thereof by the court [1 Regalado 373, 2010 Ed.]

5. Physical and Mental

Examination of Persons

Applicable in an action in which the mental or physical condition of a party is in controversy [Sec. 1, Rule 28] 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]

REMEDIAL LAW

Report of findings a. If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. b. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. c. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. [Sec. 3, Rule 28] Waiver of privilege By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination [Sec. 4, Rule 28]. 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.]

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

Refusal to question

answer

any

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees.

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[Sec. 1, Rule 29] 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 Refusal to answer designated oppose designated claims or defenses or prohibiting him from questions or refusal to produce introducing in evidence designated documents or things or items of documents or to submit to testimony, or from introducing evidence of physical or mental physical or mental condition; examination 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, 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 Refusal to admit under Rule 26 truth UNLESS 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 a. (1) Strike out all or any part of any pleading of disobedient party, or Failure of party to attend or (2) Dismiss the action or proceeding or any part thereof, or serve answers to written b. Enter a judgment by default against disobedient party, and interrogatories [Sec. 5] c. 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 this Rule (Rule 29) [Sec. 6, Rule 29]

Refusal to be sworn

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O. Trial

REMEDIAL LAW

1. Adjournment and

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 arguments [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] 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. 5, Rule 16; 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. 6, Rule 30] [1 Riano 563, 2014 Bantam Ed.] Notice of trial Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial in such manner as shall ensure his receipt of that notice at least 5 days before such date [Sec. 1, Rule 30]

Postponements

A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require [Sec. 2, Rule 30] Limitations on the authority to adjourn General rule: The court has no power to adjourn a trial for A period longer than one month for each adjournment; or More than 3 months in all [Sec. 2, Rule 30] Exception: When authorized in writing by the Court Administrator. Postponement A motion for postponement should not be filed on 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)]

2. Requisites of Motion to

Postpone Trial

a. For Absence of Evidence Motion accompanied by affidavit showing 1. The materiality or relevancy of such evidence; and 2. Due diligence has been used to procure it [Sec. 3, Rule 30]

b. For Illness of Party or Counsel Motion 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 illness is such as to render his non-attendance excusable [Sec. 4, Rule 30]

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3. Agreed Statement of Facts

f.

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 b. 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. 6, Rule 30] a.

Stipulation in Civil Cases The minutes of each pre-trial conference shall contain matters taken up therein more particularly admissions of facts and exhibits and shall be signed by the parties and their counsel [Item I-A-7, A.M. No. 03-1-09-SC]

Stipulation in Criminal Cases All agreements or admissions made or entered during the pretrial 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]

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. L3581 (1950)]

4. Order of Trial; Reversal of

Order

Subject to the provisions of Sec. 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pretrial order [Sec. 5, Rule 30] General order of trial a. Plaintiff’s evidence in chief b. Defendant’s evidence in chief and evidence in support of his counterclaim, cross-claim and 3rdparty complaint 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 crossclaim has been pleaded shall adduce evidence in

g.

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support of their defense, in the order to be prescribed by court Parties may then respectively adduce rebutting evidence only, unless the court permits them to adduce evidence upon their original case 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 [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]

5. Consolidation or Severance

of Hearing or Trial

Consolidation – a procedural device, granted to the court as an aid in deciding how case 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.]

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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)] 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 When proper: In furtherance of convenience or to avoid prejudice [Sec. 2, Rule 31] When 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.]

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6. Delegation of Reception of

Evidence

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 who is a member of the bar in a. Default hearings b. Ex parte hearings, or c. Cases where parties agree in writing. 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 days from termination of the hearing [Sec. 9, Rule 30] The Rule requires that, where the reception of evidence is delegated to the clerk of court, he must also be a member of the bar. Neither agreement by parties nor their acquiescence can justify its violation [Umali-Paco v. Quilala, AM RTJ-02-1699 (2003)]

7. 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] General rule: Trial by commissioner depends largely upon the discretion of the court [Sec. 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 [Sec. 1-2, Rule 32]

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a. Reference by Consent or Ordered on Motion

Unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence [Sec. 3, Rule 32]

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]

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]

Commissioners are to be: 1. Agreed upon by the parties; or 2. Appointed by the court

Proceedings before the commissioner 1. Upon receipt of the order of reference, the commissioner shall set a time and place for the first meeting of parties or their counsel 2. Notices shall be sent to parties or counsel 3. Hearing is to be held within 10 days after the date of order of reference [Sec. 5, Rule 32] 4. If a party fails to appear, the commissioner may 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]

5.

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 examina-tion 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 3. The date for beginning and closing the hearings, and that for the filing of his report [Sec. 3, Rule 32]

b. Powers of the Commissioner 1. 2. 3. 4.

Regulate the proceedings in every hearing before him Do all acts and take all measures necessary or proper for the efficient performance of his duties under the order Issue subpoenas and subpoenas duces tecum Swear witnesses, and

c. Report of the Commissioner; Notice to Parties and Hearing on the Report 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. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcripts, if any, of the testimonial evidence presented before him [Sec. 9, Rule 32] Notice and hearing on the report Upon the filing of the report, the parties shall be 1. Notified by the clerk; and 2. Allowed 10 days within which to object to the findings of the report, if they so desire [Sec. 10, Rule 32] Note: Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless

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they were made before the commissioner [Sec. 10, Rule 32]

P. Demurrer to Evidence

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]

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] Demurrer of evidence v. motion to dismiss Demurrer to Motion to Dismiss Evidence Made after the plaintiff Made before the filing rests his case of an answer Based on only one Based on those grounds ground under Rule 33 enumerated in Rule 16 If denied, the If denied, the defendant defendant may present may file his responsive his evidence pleading If granted, the complaint may not be If granted, the refiled and the complaint may be plaintiff’s remedy is to refiled, depending on appeal from the order the ground for dismissal of dismissal [1 Riano 572, 2014 Bantam Ed.]

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

2. Effect of Denial If the demurrer is denied, the defendant shall have the right to present his evidence [Sec. 1, Rule 33] The court should not proceed to grant the relief demanded by the plaintiff but should set the date for reception of the defendant’s evidence [Northwest Airlines v. CA, G.R. No. 120334 (1998)] An order denying the demurrer is interlocutory, and not subject to appeal. It can be subject to a petition for certiorari, in case of grave abuse of discretion or oppressive exercise of judicial authority [Katigbak v. Sandiganbayan, G.R. No. 140183 (2003)]

3. Effect of Grant If the demurrer is granted, the case shall be dismissed [Sec. 1, Rule 33]

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If the appeal is granted, the defendant- movant loses the right to present evidence [Sec. 1, Rule 33] 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)]

4. Waiver of Right to Present

Evidence

If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence [Sec. 1, Rule 33; Republic v. Tuvera, G.R. No. 148246 (2007)]

appeal and if the dismissal is reversed, the defendant is deemed to have waived his right to present his evidence It is the defendant who invokes demurrer by moving for the dismissal of the case.

Civil Case v. Demurrer to Evidence in a Criminal Case

When demurrer is denied, defendant does not lose his right to present his evidence

If the demurrer is granted, plaintiff may

granted because the dismissal is deemed an acquittal [People v. Tan, G.R. No. 167526 (2010)] The court may, on its own initiative, may dismiss the action after giving the prosecution an opportunity to be heard.

The court does not so on its own inititiative [Riano 498, Criminal Procedure, 2016 Ed.]

5. Demurrer to Evidence in a

Demurrer in CIVIL CASE Anchored upon the failure of the plaintiff to show that upon the facts and the law, he is entitled to relief [Sec. 1 Rule 33] Requires prior leave of court relief [Sec. 1, Rule 33]

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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] Defense may present evidence upon denial of demurrer if the Defense filed the demurrer with leave of court. When without leave of court, demurrer was denied, defense/accused waives his right to present evidence and submits the case for judgment on the basis of evidence offered by the prosecution. No appeal is allowed when a demurrer is Page 103 of 481

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Q. Judgments and Final Orders

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Clarificatory judgment – one rendered where the 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)] 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. (1940)] 8. Several Judgment – one 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 co-parties 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 – one rendered disposing 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 – one rendered in a special civil action for declaratory relief [Rule 63] 12. Foreign Judgment – one rendered by a tribunal of a foreign country [Sec 48, Rule 39] 4.

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 (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 in 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)] 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] [Riano] 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) – one 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 – one 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.

1. Judgment Without Trial Trial is not necessary in the following instances: a. Judgment on the Pleadings [Rule 34]

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Summary Judgment [Rule 35] Upon compromise or amicable settlement, either during pre-trial or during trial [Rule 18; Art. 2028, Civil Code] Dismissal with prejudice [Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, last par., Rule 7] Under the Rules on Summary Procedure Agreed statement of facts [Sec. 6, Rule 30]

2. Contents of a Judgment Form of judgment 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 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, finally, 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 In the case of a trial court a judgment must be distinguished from an opinion. The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So ... there is a distinction between the findings and conclusions of a court and its judgment. While they may constitute

REMEDIAL LAW

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.] 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. Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing. [Poland Industrial Limited v. National Development Company, G.R. No. 143866 (2005)] Exception: This Rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v. Pacific Equipment Corporation, G.R. No. 172053 (2008)] 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

3. Memorandum Decision Form of decision in appealed cases Every decision of final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from [Sec. 40. B.P. 129] a. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. b. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor [Sec. 14, Art. VIII, Constitution] Purpose of law on authorizing memorandum decision There is no question that the purpose of the law (referring to Sec. 40, B.P. 129 cited above) in authorizing the memorandum decision is to expedite the termination of litigations for the benefit of the

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parties as well as the courts themselves [Francisco v. Permskul, G.R. No. 81006 (1989)] Features of memorandum decision The distinctive features of the memorandum decision are: a. it is rendered by an appellate court, and b. it 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.] Requirement for its validity a. The memorandum decision, to be valid, cannot incorporate the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading the memorandum decision. b. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. In other words, the memorandum decision authorized under Sec. 40 of B.P. 129 should actually embody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. c. It is expected that this requirement will allay the suspicion that no study was made of the decision of the lower court and that its decision was merely affirmed without a proper examination of the facts and the law on which it is based. The proximity at least of the annexed statement should suggest that such an examination has been undertaken. It is, of course, also understood that the decision being adopted should, to begin with, comply with Article VIII, Section 14 [1987 Constitution] as no amount of incorporation or adoption will rectify its violation. [Francisco v. Permskul, G.R. No. 81006 (1989)] When rendered a. It is an additional condition for its validity that this kind of decision may be resorted to only in cases where the facts are in the main accepted by both parties or easily determinable by the judge and there are no doctrinal complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the appeal is

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obviously groundless and deserves no more than the time needed to dismiss it. b. The memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the appeal is obviously groundless and deserves no more than the time needed to dismiss it. c. Henceforth, all memorandum decisions shall comply with the requirements herein set forth both as to the form prescribed and the occasions when they may be rendered. Any deviation will summon the strict enforcement of Article VIII, Section 14 of the Constitution and strike down the flawed judgment as a lawless disobedience [Francisco v. Permskul, G.R. No. 81006 (1989)]

4. Judgment on the Pleadings Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading [Sec. 1, Rule 34] A motion for a Judgment on the Pleadings, where the answer admits the material averments of the complaint, is one that may be considered ex parte because upon the particular facts thus presented and laid down before the court, the plaintiff is entitled to a judgment [Dino v. Valencia, G.R. No. L-43886 (1989)] A Judgment on the Pleadings cannot be rendered by the court motu propio. It can only be done where there is a prior motion to that effect by the appropriate party [Sec. 1, Rule 34, cited by 1 Riano 610, 2014 Bantam Ed. But see Luzon Development Bank v. Conquilla, G.R. No. 163338 (2005)] Grounds for judgment on the pleadings a. The answer fails to tender an issue, or b. The answer otherwise admits material allegations of the adverse party’s pleading [Sec. 1, 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 [Sec. 1, 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,

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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]

5. Summary Judgments 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)] The trial court cannot motu propio decide that summary judgment on an action is in order. The defending party or claimant, as the case may be, must invoke the Rule by filing a motion. The adverse party must then be notified of the motion and furnished with supporting documents before hearing is conducted [Pineda v. Heirs of Eliseo Guevara, G.R. No. 143188 (2007)] 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 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)]

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a. For the Claimant; For the Defendant 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 with supporting affidavits, depositions or admission 2. Service to the adverse party at least 10 days the hearing 3. Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing 4. Hearing – Court shall determine if a genuine issue as to any material fact exists, and if the movant is entitled to a summary judgment as a matter of law 5. Court renders summary judgment [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.” Bases for summary judgment 1. Affidavits 2. Depositions 3. Admissions [Sec. 1-2, Rule 35]

b. When the Case is Not Fully Adjudicated 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] 1. Ascertain which material facts exist without substantial controversy and which are actually and in good faith controverted, by a. Examining the pleadings and evidence before it; and b. Interrogating counsel 2. Make an order which: a. Specifies the facts without substantial controversy and deemed established,

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including the extent to which the amount of damages or other relief is not in controversy b. Directs further proceedings as are just 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)]

c. 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] 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

6. Judgment on the Pleadings

v. Summary Judgment

Summary judgment Involves an issue, but the issue is not genuine Motion for summary judgment may be filed by either the claiming or the defending party [Secs. 1-2, Rule 35]

Judgment on the pleadings Absence of a factual issue in the case because the answer tenders no issue at all Motion for judgment on the pleadings is filed by a claiming party like a plaintiff or a counterclaimant [Sec. 1, Rule 34]

Summary judgment

REMEDIAL LAW

Judgment on the pleadings

Based on the pleadings, affidavits, Based on the pleadings depositions and alone [Sec. 1, Rule 34] admissions [Sec. 3, Rule 35] 10-day notice to the adverse party is required. The adverse Only a 3-day notice to party in turn may serve the adverse party is opposing affidavits, required prior to the depositions or date of hearing [Sec. 4, admissions at least 3 Rule 15]] days before the hearing [Sec. 3, Rule 35] [1 Riano 614-615, 2014 Bantam Ed.]

7. 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)] The filing of the signed decision constitutes the rendition of a judgment. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule embodied in Sec. 1, Rule 36 [2 Herrera 151, 2007 Ed.] 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)] 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]

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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] 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)]

8. Entry of Judgment and Final

Order

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] Contents of record in the book of entries: a. Dispositive part of the judgment or final order b. Signature of the clerk; and c. Certification that such judgment or final order has become final and executory [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] Under Sec. 2, Rule 36, the date of the entry of judgment is the date when the judgment becomes final and executory regardless of the date when the physical act of entry was done [1 Riano 615, 2014 Bantam Ed.]

REMEDIAL LAW

R. 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.]

1. Motion for New Trial or

Reconsideration

Note: The motion for reconsideration (MR) under Rule 37 is directed against a judgment or final order [Sec. 1, Rule 37]. 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].

a. 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) which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights, or 2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result [Sec. 1, Rule 37] FAME Fraud must be extrinsic. Meaning, it is 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 [1 Regalado 455, 2010 Ed.] For mistake, it generally refers to mistake of fact but may also be mistakes of law made in good faith by the defendant who was misled in the case [1 Regalado 431, 2010 Ed.]

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For negligence, it must be generally imputable to the party. The negligence of the 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 432, 2010 Ed.]

[Sec. 2, Rule 37]

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 formally offered and closed their evidence before judgment. [1 Regalado 432, 2010 Ed.]

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

Grounds for Motion for Reconsideration 1. Damages awarded are excessive 2. Evidence is insufficient to justify the decision or final order 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)]

b. When to File Within the period for taking an appeal [Sec. 1, Rule 37] See Period of appeal below. Contents 1. The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. 2. A MNT shall be proved in the manner provided for proof of motions. a. A motion based on FAME shall be supported by affidavits of merits which may be rebutted by affidavits. b. A motion based on newly-discovered evidence shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. 3. 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. 4. A pro forma MNT/MR shall not toll the reglementary period of appeal.

MNT based on FAME not accompanied by affidavit of merits General rule: Denied

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 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] 1. A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. 2. No party shall be allowed a second motion for reconsideration of a judgment or final order. Court action The trial court may 1. Set aside the judgment or final order and grant a new trial, upon such terms as may be just 2. Deny the motion 3. Amend such judgment or final order accordingly if the court finds that

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Excessive damages have been awarded or that, or b. Judgment or final order is contrary to the evidence or law [Sec. 3, Rule 37] a.

Resolution: The motion shall be resolved within 30 days from the time it is submitted for resolution [Sec. 4, Rule 37] The 30-day period to resolve the motion is held to be mandatory [Gonzales v. Bantolo, A.M. No. RTJ-06-1993 (2006)]

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

d. Grant of the Motion; Effect Grant of MNT If a new trial is granted in accordance with Rule 37, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, 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 If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly [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

REMEDIAL LAW

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]

e. Remedy When Motion is Denied; Fresh 15-Day Period Rule 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. 2. 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)] 1.

Notes What is appealed is the judgment itself, not the order denying the MNT/MR [Sec. 9, Rule 37]. A.M. No. 07-7-12, effective December 27, 2007, amended Sec. 1, Rule 41 by deleting “An order denying a motion for new trial or reconsideration” from the non-appealable orders. Nevertheless, Sec. 9, Rule 37 still states that an order denying a MNT or reconsideration is not appealable.

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Motion for New Trial v. Motion for Reconsideration Motion for New Trial 1. 2.

Grounds 1. Fraud, accident, mistake, or excusable [Sec. 1, negligence Rule 37] 2. Newly discovered evidence

3.

A MNT shall include all grounds then available and those not so included shall be deemed waived.

Second A second MNT based on a ground not existing MNT/MR nor available when the first motion was made,

Effect if granted

may be filed within the time herein provided excluding the time during which the first motion had been pending. [Sec. 5, Rule 37] The original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, 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]

2. Appeals

REMEDIAL LAW

Motion for Reconsideration Damages awarded are excessive That the evidence is insufficient to justify the decision or final order That the decision or final order is contrary to law

No party shall be allowed a second MR of a judgment or final order [Sec. 5, Rule 37]. Note: This prohibition does not cover interlocutory orders.

The court may amend the judgment or final order accordingly, if it finds: 1. that excessive damages have been awarded, or 2. that the judgment or final order is contrary to the evidence or law [Sec. 3, Rule 37]

particular matter therein when declared by the ROC to be appealable [Sec. 1, Rule 41].

Nature a. Not a natural right nor a part of due process b. It is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law [Ong v. Philippine Insurance Corp., G.R. No. 175116 (2010)] c. Once granted, appeals become part of due process and should be liberally applied in favor of the right to appeal [Sec. 1, Rule 122; NOTE: This provision is from the Rules on Criminal Procedure.] 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.]

b. Matters Not Appealable 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. 07-7-12-SC] 1.

a. Judgments and Final Orders Subject to Appeal An appeal may be taken from a judgment or final order that completely disposes of the case, or of a Page 112 of 481

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Final order v. interlocutory order Final Order Interlocutory Order One that finally Determine incidental disposes of a case, matters that do not leaving nothing more touch the merits of the to be done by the case or put an end to Court in respect thereto the proceedings [Silverio [Investments, Inc. v. CA, Jr. v. Filipino Business G.R. No. L-60036 Consultants, Inc., G.R. (1987)] No. 143312 (2005)] Proper remedy to question an improvident Subject to appeal interlocutor order is a [Investments, Inc. v. CA, petition for certiorari G.R. No. L-60036 under Rule 65 [Silverio (1987)] Jr. v. Filipino Business Consultants, Inc., G.R. No. 143312 (2005)] Not decisions or Must express clearly judgments within the and distinctly the facts constitutional and the law on which it definition [1 Riano 581, is based [Sec. 14, Art. 2014 Bantam Ed., VIII, Constitution] citing Amargo v. CA, G.R. No. [Pahila-Garrido v Tortogo, G.R. No. 156358 (2011)] An interlocutory order is one that does not finally dispose of the case, and does not end the court's task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done [BPI v. Lee, G.R. No. 190144 (2012)] 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.]

c. 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]

REMEDIAL LAW

d. Final Judgment Rule; Exceptions 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)] Amended/clarified judgment An entirely new decision and supersedes the original judgment

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Supplemental decision Does not take the place of or extinguish the original judgment

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Amended/clarified Supplemental judgment decision Court makes a thorough study of the original judgment and renders the amended Serves to add to the and clarified judgment original judgment only after considering all the factual and legal issues [1 Regalado 418, 2010 Ed.]

f. Issues to be Raised on Appeal Limited to cognizable judgments/issues (errors stated in the assignment of errors) unless it affects the court’s jurisdiction over the subject matter or it is a plain/clerical error [Enriquez v. CA, G.R. No. 140473 (2003)] 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)]

e. Modes of Appeal 1. 2. 3. 4.

REMEDIAL LAW

Ordinary appeal – Rule 40 and 41 a. Notice of appeal b. Record on appeal Petition for review – Rule 42 Appeal from quasi-judicial agencies (QJAs) to the CA – Rule 43 Petition for review on certiorari – Rule 45

A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court [Sps. Topacio v Banco Filipino Savings and Mortgage Bank, G.R. No. 157644 (2010)] However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court [Espina v. CA, G.R. No. 102128 (1992)]

Modes of Appeal Ordinary Appeal Rule 41

Appeals from QJAs to the CA Rule 43

Petition for Review Rule 42

Awards, judgments, final orders or resolutions of or authorized by any QJA in the exercise of its quasijudicial functions [Sec. 1, Rule 43]

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

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

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), Rule 41]

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

Verified petition for review with the CA [Sec. 5, Rule 43]

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

Filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy

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

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

File verified petition for review on certiorari with the SC [Sec. 1, Rule 45]

EXCEPT: Judgments or final orders issued under the Labor Code [Sec. 2, Rule 43]

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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, Rule 45]

Petitioner shall pay the corresponding docket and other lawful fees to the COC of the SC and deposit

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Ordinary Appeal thereof upon the adverse party If required, the record-on appeal shall be filed and served in like manner [Sec. 2, Rule 41]

Within 15 days from notice of the judgment or final order appealed from 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, Rule 41]

CIVIL PROCEDURE

Petition for Review furnishing the RTC and the adverse party with a copy of the petition [Sec. 1, Rule 42]

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, Rule 42]

g. 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 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 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)] Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent [First Aqua Sugar v. BPI, G.R. No. 154034 (2007)]

Appeals from QJAs to the CA CA shall be indicated as such by the petitioner. 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 [Sec.5, Rule 43] 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, Rule 43]

REMEDIAL LAW

Petition for Review by Certiorari 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, Rule 45]

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, Rule 45]

h. 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 1. Defeats a party’s right to appeal. 2. Precludes appellate court from jurisdiction. [1 Riano 20, 2011 Ed.]

acquiring

i. Participation of the Solicitor General During Appeal In criminal proceedings on appeal in the Court of Appeals or in the SC, the authority to represent the People is vested solely in the Solicitor General. Under P.D. 478, among the specific powers and functions of the OSG was to represent the government in the SC and the Court of Appeals in all criminal proceedings.

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This provision has been carried over to the Administrative Code particularly in Book IV, Title III, Chapter 12 thereof [Cario v. De Castro, G.R. No. 176084 (2008)] The respondent’s failure to have a copy of his petition [for review under Rule 42] served on the People of the Philippines, through the OSG, is a sufficient ground for the dismissal of the petition as provided in Sec. 3, Rule 42 of the Rules of Court [People v. Duca, G.R. 171175 (2009)]

j. Appeal from Judgments or Final Orders of the Municipal Trial Court Procedure File a notice of appeal with the court that rendered the judgment or final order appealed from [Sec. 3, Rule 40] Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees [Sec. 5, Rule 40]  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, Rule 40]  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), Rule 40]  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 adverse party. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal [Sec. 7(b), Rule 40]  Within 15 days from receipt of the appellant’s memorandum, the appellee may file his memorandum [Sec. 7(c), Rule 40] 

REMEDIAL LAW

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), Rule 40] 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 thirty (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. L-18231 (1962)] 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 2. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. 3. Copies of the notice of appeal shall be served on the adverse party. [Sec. 3, Rule 40] 4. 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, 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.

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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. 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, Rule 40] 3.

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] Appeal from order dismissing a case without trial; lack of jurisdiction 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 41 [Sec. 9, Rule 41]

REMEDIAL LAW

k. Appeal from Judgments or Final Orders of the Regional Trial Court Modes of appeal 1. Ordinary appeal — The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the ROC so require. In such cases, the record -on appeal shall be filed and served in like manner. 2. Petition for review — The appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. 3. Appeal by certiorari — In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45. [Sec. 2, 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.] NOTICE OF APPEAL Contents of the notice of appeal 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 1. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the ROC so require. 2. In such cases, the record -on appeal shall be filed and served in like manner. [Sec. 2(a), Rule 41]

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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.] If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. 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] Note: Material date rule [Sec. 6, Rule 41]; 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. L39684 (1975)] 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 approve it as presented or upon its own motion or at the

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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 redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. [Sec. 7, Rule 41] Joint record on appeal Where both parties are appellants, they may file a joint record on appeal within the time fixed by Sec. 3 of Rule 41, or that fixed by the court [Sec. 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 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 [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)] 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]

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When a party is represented by a counsel, service of process must be made on counsel, not on party [Fajardo v. CA, G.R. No. 140356 (2001)] Effect of motions for new trial and reconsideration Fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration [Neypes v. CA, G.R. No. 141524 (2005)] 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)] 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)] PLEADINGS FILED Appellant’s brief 1. 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]. 2. 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

8.

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Copy of judgment or final order appealed from [Sec. 13, Rule 44]

Appellee’s brief 1. Within 45 days from receipt of the appellant’s brief, the appellee shall file with the court 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant [Sec. 8, Rule 44] 2. 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]

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 2. Absence of specific assignment of errors in the appellant’s brief [Sec. 1(e)-(f), Rule 50]

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]

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

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 did not cure the defect of the appeal because payment is a jurisdictional requirement [Santander v Villanueva, G.R. No. L-6184 (1958)]

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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] The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed [Fernandez v. CA, G.R. No. 131094 (2005)]

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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, as the case may be, and to make a certification of its correctness b. To verify the completeness of the records that will be transmitted to the appellate court c. If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose; and d. To transmit the records to the appellate court 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 non-transmittal, 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] Note: The dismissal of the appeal in the RTC is limited only to these two grounds. Failure of the appellee to move for dismissal of an appeal perfected out of time does not prevent the filing of such a motion in the appellate court for it involves the appellate jurisdiction of the latter court [Garganta v. CA, G.R. No. L-12104 (1959)] Petition for review from the RTC to the CA [Rule 42] Appeal via Rule 42 is proper when one appeals from a decision of the RTC in the exercise of its appellate

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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 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 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 a. Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original

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(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. Maters 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 [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 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

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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 corn-promises 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: 1. Civil cases decided under the Rule on Summary Procedure, or 2. The CA, the law, or ROC provide otherwise [Sec. 8(b), 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 unsubstantial to require consideration [Sec. 4, Rule 42] 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. citing Sec.6, Rule 42] Contents of comment 1. In 7 legible copies a. Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original

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(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, 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]. 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.]

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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)] TEST: 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. L-22005 (1968)] How determined The appellate court determines, not the court which rendered the decision appealed from [PNB v. Romillo, G.R. No. 70681 (1985)] Grave abuse of discretion is not an allowable ground under Rule 45 [Martires v. CA, G.R. No. 78036-37 (1990)]

l. 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)] Note: the use of the term “any case”. This includes special civil actions.

Certiorari as mode of appeal and as special civil action Appeal by certiorari [Rule 45] Brings up for review errors of judgment committed by the court in the exercise of its jurisdiction amounting to nothing

Certiorari as SCA [Rule 65] Writ of certiorari issues for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction [Silverio v.

Appeal by certiorari [Rule 45] more than an error of judgment Based on questions of law which the appellant desires the appellant court to resolve

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

Must be made within the reglementary period for appeal

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Certiorari as SCA [Rule 65] CA, G.R.No. L-39861 (1986)] Petition raises the issue as to whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion 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 May be filed not later than 60 days from notice of the judgment, order or resolution sought to be assailed

Unless a writ of preliminary injunction or a TRO shall have been issued, does not stay the challenged proceeding The parties are the Petitioner and aggrieved party against respondent are the the lower court or quasioriginal parties to the judicial agency and the action, and the lower prevailing parties, who court or quasi-judicial thereby respectively agency is not too be become the petitioner impleaded and respondents MR is a condition Prior filing of a MR is precedent [Villa Rey not required [Sec. 1, Transit v. Bello, G.R. No. Rule 45] L-18957 (1963)], subject to certain exceptions Higher court exercises Appellate court is in original jurisdiction the exercise of its under its power of appellate jurisdiction control and supervision and power of review over the proceedings of [Regalado 543-544, lower courts [Regalado 1977 Ed.] 543-544, 1977 Ed.] [2 Herrera 643-645, 2000 Ed.] Stays the judgment, award or order appealed from

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Procedure 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, Rule 45] 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, Rule 45]  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, Rule 45]  SC may dismiss or deny the petition [Sec. 5, Rule 45], or give due course to it [Sec. 8, Rule 45]  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]. 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)] Questions of law Doubt as to what the law is on certain facts

Questions of fact Doubt as to the truth or falsehood of facts, or as to probative value of the evidence presented

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

The determination involves evaluation or review of evidence

Can involve questions of interpretation of law

Query involves the calibration of the whole evidence

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Questions of law with respect to certain set of facts

Questions of fact considering mainly the credibility of witnesses, existence, and relevancy of specific surrounding 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 Develpment 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)] 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. L6327 (1954)] 4. Judgment is based on a misapprehension of facts [De la Cruz v. Sosing, G.R. No. L-4875 (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

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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 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 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. Maters 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

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record as would support the allegations of the petition 7. Certificate of non-forum shopping [Sec. 2, Rule 45] Grounds for denial of petition 1. Failure of petitioner to comply with a. Payment of docket or other lawful fees b. Deposit for costs c. Proof of Service; and d. Contents of and documents which would accompany the petition 2. Appeal is without merit 3. Is prosecuted manifestly for delay 4. That the questions raised are so unsubstantial as to require consideration [Sec. 5, Rule 45] Notes: 1. Although the lower court is not a party to the case, failure to present proof of service of copies to the lower court and on the adverse party shall result to 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.] 2. SC may dismiss the petition on its own initiative or motu proprio [Sec. 5, Rule 45] 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 therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: 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]

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m. 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 Elections (COMELEC) and 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] Time to file 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, 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]

n. Review of Final Judgments or Final Orders of the Commission on Elections Mode of Review & Effect of Filing Same as COA 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]

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Decisions in appeals from courts of general or limited jurisdiction in election cases relating to the elections, returns, and qualifications of municipal and barangay officials are not appealable [Sec. 2, Rule 37, COMELEC Rules of Procedure] Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of 5 days from their promulgation, unless restrained by the SC [Sec. 3, Rule 37, COMELEC Rules of Procedure]

o. Review of Final Judgments or Final Orders of the Civil Service Commission See Rule 43 on Review of QJAs below.

p. Review of Final Judgments or Final Orders of the Ombudsman 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] Jurisdiction of the CA 1. Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under the provisions of Rule 43 [Fabian v. Desierto, G.R. No. 129742 (1998)] 2. The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, 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

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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)]

q. Review of Final Judgments or Final Orders of Quasi-Judicial Agencies Scope: Appeals from awards, judgments, final orders or resolution of or authorized by any quasi-judicial 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 Note: The CTA is no longer a quasi-judicial agency under R.A. 9282, as of April 7, 2004. 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]

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Where to appeal Appeal may 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 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

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Concise statement of facts and issues involved and grounds relied upon for review 3. Clearly legible duplicate original or a certified true copy of award, judgment, final order, or resolution appealed from 4. Certified true copies of such material portions of record referred to in the petition and other supporting papers 5. Certificate of non-forum shopping 6. Statement of specific material dates showing timeliness of appeal [Sec. 6, Rule 43]

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2.

Effect of failure to comply Failure to comply with the following is sufficient ground for the CA to dismiss the appeal 1. Payment of docket and lawful fees 2. Deposit for costs 3. Proof of service of petition 4. Contents of petition 5. Documents which should accompany the petition [Sec. 7, Rule 43] Action on the petition The CA may 1. Require the respondent to file a Comment within 10 days from notice, or 2. Dismiss the petition if CA finds the same to be a. Patently without merit b. Prosecuted manifestly for delay, or c. Questions raised are too unsubstantial to require consideration [Sec. 8, Rule 43] Contents of comment 1. Filed within 10 days from notice in 7 legible copies a. 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. Accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers 3. Point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and 4. State the reasons why the petition should be denied or dismissed. 5. A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the CA. [Sec. 9, Rule 43]

Due course 1. If upon a. the filing of the comment or such other pleadings or documents as may be required or allowed by the CA or b. the expiration of the period for the filing thereof, and 2. On the basis of the petition or the records, the CA finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition [Sec. 10, Rule 43] Otherwise, it shall dismiss the same [Sec. 10, Rule 43] The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the CA [Sec. 10, Rule 43] Transmittal of records 1. Within 15 days from notice that the petition has been given due course, the CA may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. 2. The record to be transmitted may be abridged by agreement of all parties to the proceeding. 3. The CA may require or permit subsequent correction of or addition to the record. [Sec. 11, Rule 43] Effect of appeal General rule: Appeal shall not stay the award, judgment, final order or resolution sought to be reviewed Exception: The CA shall direct otherwise upon such terms as it may deem just [Sec. 12, Rule 43] Submission for decision 1. If petition is given due course, the CA may a. set the case for oral argument or b. require parties to submit memoranda within 15 days from notice 2. Upon filing of last pleading or memorandum required by the ROC or the CA, case is deemed submitted for decision [Sec. 13, Rule 43]

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Appeal from the NLRC Appeal from quasi-judicial agencies 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)]

r. Dismissal, Reinstatement, and Withdrawal of Appeals 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 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

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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 with-drawn as 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 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]

s. Dual function of Appellate Courts 1.

2.

An appellate court serves a dual function. The first is the review for correctness function, whereby the case is reviewed on appeal to assure that substantial justice has been done. The second is the institutional function, which refers to the progressive development of the law for general application in the judicial system. Differently stated, the review for correctness function is concerned with the justice of the particular case while the institutional function is concerned with the articulation and application of constitutional principles, the authoritative interpretation of statutes, and the formulation of

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4.

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policy within the proper sphere of the judicial function. The duality also relates to the dual function of all adjudication in the common law system. The first pertains to the doctrine of res judicata, which decides the case and settles the controversy; the second is the doctrine of stare decisis, which pertains to the precedential value of the case which assists in deciding future similar cases by the application of the rule or principle derived from the earlier case. With each level of the appellate structure, the review for correctness function diminishes and the institutional function, which concerns itself with uniformity of judicial administration and the progressive development of the law, increases [In Re: Letter complaint of Merlita B. Fabiana against presiding justice Andres B. Reyes, Jr. et al, A.M. No. CA-13-51-J (2013)]

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t. The “Harmless Error Rule” in Appellate Decisions No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must 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)]

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Comparative table on the modes of appeal RULE 40 RULE 41 ORDINARY APPEAL Matter of Right; Filed with the court of origin All records are elevated from court of origin Appeal from Appeal from a a decision of judgment or final the RTC in order of a the exercise MTC/MeTC/MCTC of its original jurisdiction

Rule 41 provisions shall apply to Rule 40 if not consistent with Rule 40 provisions

RULE 40 Filed with the MTC Appeal to the RTC Questions of fact or mixed questions of fact and law RULE 40

RULE 41 Filed with the RTC Appeal to the CA Questions of fact or mixed questions of fact and law RULE 41

BY NOTICE OF APPEAL Within 15 days after notice of judgment or final order BY RECORD ON APPEAL Within 30 days from notice of judgment or final order by filing a notice of appeal and a record on appeal

When Proper RULE 42 RULE 43

RULE 45

PETITIONS FOR REVIEW Discretionary; No records are elevated unless the court decrees it Filed with the appellate court

Appeal from a decision of the RTC rendered in the exercise of its appellate jurisdiction

Appeals from awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions

Appeals to the SC from a judgment or final order or resolution of the CA, Sandiganbayan, RTC or such other courts as may be authorized by law Decisions, final orders, or resolutions of the CA in any case, regardless of the nature of the action or proceedings involved, may be appealed to the SC by filing a petition for review

Where To File RULE 42 RULE 43

RULE 45

Filed with the CA Appeal to the CA

Filed with the SC Appeal to the SC

Filed with the CA Appeal to the CA

Questions of fact, Questions of fact, questions of law, questions of law, or or mixed mixed questions of questions of both fact and law Time For Filing RULE 42 RULE 43 Within 15 days from: 1. Notice of award, Within 15 days judgment, final from notice of order, or decision, or resolution; Within 15 days 2. Date of from notice of publication, if denial of publication is petitioner’s MNT required by law or for its reconsideration effectivity; or 3. Denial of petitioner’s MNT or MR

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Only questions of law

RULE 45

Within 15 days from: 1. Notice of judgment, final order, or resolution appealed from; or 2. Notice of denial of MNT or reconsideration filed in due time after notice of judgment

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u. Relief from Judgments or Final Orders and Resolutions Remedies after finality of judgment 1. Petition for Relief [Rule 38] 2. Action to Annul Judgment [Rule 47] 3. Certiorari 4. Collateral Attack of a Judgment that is Void on its Face [1 Riano 60, 2011 Ed.] Nature A legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake, or excusable negligence (FAME) [Quelnan v. VHF Phils, G.R. No. 138500 (2005)] A petition for relief from judgment is an equitable remedy allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available, either MNT or appeal, and he was not prevented by FAME from filing such motion or taking such appeal, he cannot avail himself of this petition [Trust International Paper Corp. v. Pelaez, G.R. No. 164871 (2006)] In addition, petition for review is available only when the loss of the remedy was due to the petitioner’s own fault [Tuason v CA, G.R. No. 116607 (1996)] Such party is not entitled to relief under Sec. 2, Rule 38 of the ROC if he was not prevented from filing his notice of appeal by fraud, accident, mistake or excusable negligence. Such relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy of law was due to his own negligence, or a mistaken mode of procedure for that matter; otherwise, the petition for relief will be tantamount to reviving the right of appeal which has already been lost either because of inexcusable negligence or due to a mistake of procedure by counsel [Fukuzumi v. Sanritsu Great International Corporation, G.R. No. 140630 (2004)] A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment [Manila Electric v. CA, G.R. No. 88396 (1990)]

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Motion for new trial and petition for relief Motion for New Petition for Relief Trial [Rule 38] [Rule 37] Available before Available after judgment becomes judgment has become final and executory final and executory Applies to judgments, Applies to judgments final orders and other or final orders only proceedings Grounds: 1. FAME; or Ground: FAME 2. Newly discovered evidence Filed: 1. within 60 days from knowledge of Filed within the time judgment; and to appeal 2. within 6 months from entry of judgment If denied, order of If denied, order denying denial is not a petition for relief is appealable; hence, not appealable; remedy remedy is appeal from is appropriates civil judgment action under Rule 65 Legal remedy Equitable remedy Motion need not be Petition must be verified verified (1 Regalado 426-437, 441-442, 2010 Ed.) 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. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a MNT or MR that a petition for relief can be filed [Francisco v. Puno, G.R. No. L-55694 (1981)] When proper When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through FAME [Sec. 1, Rule 38] Thus, it was held that a petition for relief is also applicable to a proceeding taken after entry of judgment or final order such as an 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)]

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Where filed When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through FAME, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside [Sec. 1, Rule 38]. Rule 38 is not an independent action but a continuation of the old case. Hence, it is filed with the same court in the same case [1 Regalado 441, 2010 Ed.] If it is filed in a different court and docketed as a new case therein, it should be dismissed by the court in which it was filed for lack of jurisdiction [Servicewide Specialists, Inc. v. Sheriff of Manila, GR No. 74586, (19860] Grounds for availing the remedy 1. When judgment or final order is entered, or any other proceeding is thereafter taken against petitioner through FAME 2. When petitioner has been prevented from taking an appeal by FAME [Secs. 1-2, Rule 38] Note: “Extrinsic fraud” is that 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)] Time to file action 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] Regarding (1) above, the period is not reckoned from the date he actually read the same [Perez v. Araneta, G.R. No. L-11788 (1958)] 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

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Rules, is fatal [Quelnan v. VHF Phils, G.R. No. 138500 (2005)] 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]. The absence of an affidavit of merits is a fatal defect and warrant 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 1. 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. 2. 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 1. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and

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If after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed 3. But if it finds said allegations to be true, it shall set aside the judgment or final order or other proceeding complained of upon such terms as may be just. a. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. b. 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. 6, Rule 38] 2.

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

3. Annulment of Judgments or

Final Orders and Resolutions

Nature An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose is to have the final and executory judgment set aside so that there will be a renewal of litigation [Alaban v. CA, G.R. No. 156021 (2005)] A person who is not a party to the judgment may sue for its annulment provided he can prove that it was obtained through fraud or collusion and that he would be adversely affected thereby. An action for annulment of judgment may be availed of even if the judgment to be annulled has already been fully

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executed or implemented [Islamic Da’wah Council of the Philippines. v. CA, G.R. No. 80892 (1989)] When proper The remedy may not be invoked where the party has availed himself of the remedy of new trial, appeal, petition for review, or other appropriate remedy and lost, or 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)] It is a condition sine qua non that one must have failed to avail of those remedies, through no fault attributable to him. Otherwise, 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 Petitioner need not be a party to the judgment sought to be annulled [Republic v. CA, G.R. No. 122269 (1999)] A person who is not a party to the judgment may sue for its annulment provided that he can prove the same was obtained through fraud or collusion, and that he would be adversely affected thereby. [Alaban v. CA, G.R. No. 156021 (2005)]

a. Grounds for Annulment 1. 2.

The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a MNT or petition for relief.

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[Sec. 2, Rule 47] 3. Denial of due process - recognized as an additional ground based on jurisprudence [See Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)]. BUT see Lasala v. National Food Authority [G.R. No. 171582 (2015)], where the SC ruled that only two grounds may be recognized in a petition for annulment: extrinsic fraud and lack of jurisdiction. Extrinsic fraud A fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from exhibiting fully his side of the case by deception practiced on him by the prevailing party [Alba v. CA, G.R. No. 164041 (2005)] It is such that was revealed to/was even deliberately suppressed from the opposing party and the court [1 Regalado 629-630, 2010 Ed.] 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)]

b. Period to File Action Extrinsic fraud Period filing

for

4 years from discovery

Lack of jurisdiction Before it is barred by laches or estoppel

[Sec. 3, Rule 47] There must be a manifest showing with petition that it was filed within the 4-yr period [1 Regalado 532, 2010 Ed.]

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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 4. Affidavits of witnesses or documents supporting the cause of action or defense; and 5. Certificate of non-forum shopping [Sec. 3, Rule 47] Note: Generally, the lack of a certificate of non-forum shopping is not curable by the submission thereof after the filing of a petition. In exceptional circumstances, however, such as the filing of the certification a day after but within the reglementary period for filing such petition, the belated filing was allowed as a substantial compliance. While the filing of the certification is mandatory, still the requirement must not be interpreted literally [Shipside, Inc. v. CA, GR No. 143377 (2001)] 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]

The rule does not fix the period to annul judgment based on lack of jurisdiction but recognizes the principle of estoppel as first laid down by Tijam v. Sibanghanoy [G.R. No. L-21450 (1968)]

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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 3. See Rule 47 b. By direct action, as certiorari, or by collateral attack in case of apparent nullity 1. 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 1. This third manner of attacking must be taken in the same action or proceeding in which the judgment or order was entered [1 Regalado 454-456, 2010 Ed.] 2.

c. Effect 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 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.] Effect on prescriptive period 1. The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of the judgment of annulment. 2. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. [Sec. 8, Rule 47]

4. Collateral Attack of

Judgments

Direct attack v. collateral attack a. When the Court says direct attack, it means that the object of an action is to annul or set aside such judgment, or enjoin its enforcement. b. On the other hand, the attack is indirect or collateral when, in an action to obtain a different relief, an attack on the judgment or proceeding is nevertheless 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 1. A direct attack against the order or judgment, is one that it is not incidental to, but is the main object of, the proceeding

Void judgment A void judgment is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void [Polystyrene Manufacturing v. Privatization Management, G.R. No. 171336 (2007)] A judgment may be void for lack of due process of law [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)] Attacking a void judgment It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)] Remedies If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration [Rule 37], Appeal [Rules 40-45], Petition for Relief [Rule 48], and other appropriate remedies such as certiorari may also be used. [1 Riano 60, 2011 Ed.] If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment [Rule 47] may be resorted to. [Mandy Commodities Co. Inc.v ICBC, G.R. No. 166734 (2009)] When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a

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Main Action for Injunction [Barrameda v. Moir, G.R. No. L-7927 (1913)] Jurisprudential basis Spouses Benatiro v. Heirs of Cuyos [G.R. No. 161220 (2008)] and Agustin v. Bacalan [G.R. No. L-46000 (1985)] on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without through no fault on the part of the petitioner [Sec. 1, Rule 47]. Although Sec. 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)]. BUT see Lasala v. National Food Authority [G.R. No. 171582 (2015)], where the SC ruled that only two grounds may be recognized in a petition for annulment: extrinsic fraud and lack of jurisdiction. A void judgment is like an outlaw which may be slain at sight wherever or whenever it exhibits its head. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment [Montinola v. Judge Gonzales, G.R. No. L-36155 (1989)] A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law [Panlilio v. Garcia, G.R. No. L-29038 (1982)]

REMEDIAL LAW

S. Execution, Satisfaction and Effect of Judgments Execution is a remedy afforded by law for the enforcement of a judgment. It is a judicial writ issued to an officer authorizing and requiting 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 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.]

1. Difference between Finality

of Judgment for Purposes of Appeal; 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 appealed according to Sec. 1(b), Rule 41 [1 Regalado 450, 2010 Ed.] The word interlocutory refers to something intervening between the commencement and the end of a suit, which decides some point or matter but is not a final decision of the whole controversy [Ramiscal, Jr. v. Sandiganbayan, G.R. No. 140756-90 (2004)] 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:

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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)]

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a.

Once rendered, the task of the court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the court except to await the parties' next move (such as filing of a MNT or MR, or the taking of an appeal) and ultimately, to cause the execution of the judgment once it becomes 'final and executory [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. Finality becomes a fact upon the lapse of the reglementary period to appeal if no appeal is perfected. [Prieto v. Alpadi Development Corporation, G.R. No. 191025 (2013)] Final Judgments They 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.] 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)]

Final AND Executory Judgments Judgments become final and executory by operation of law. [Cadena v. Civil Service Commission, G.R. No. 191412 (2012)] 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)]

2. 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: 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, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court [Sec. 1, Rule 39] b. If judgment in an action for forcible entry or unlawful detainer is rendered against the defendant, execution shall issue immediately upon motion [Sec. 19, Rule 39] c. The decision of the Regional Trial Court in civil cases governed by the Rules on Summary Procedure shall be immediately executory, without prejudice to a further appeal that may be taken therefrom [Sec. 21, Rules on Summary Procedure] d. The decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal [Art. 229, Labor Code] Exception to the exception: On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party [Sec. 1, Rule 39]

a. Execution as a Matter of Right A judgment becomes final and executory by operation of law, not by judicial declaration. The prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is a ministerial duty and compellable by mandamus [2 Herrera 285, 2007 Ed.; CIR v. Visayan Electric Company, G.R. No. L-24921 (1967)]

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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; 4. When the judgment sought to be executed is conditional or incomplete; 5. When facts and circumstances transpire which would render execution inequitable or unjust; 6. When execution is sought more than five (5) years from its entry without it having been revived; 7. When execution is sought against property exempt from execution; 8. When refusal to execute the judgment has become imperative in the higher interest of justice [1 Riano 647-648, 2014 Bantam Ed.] 3.

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 2. If the appeal has been duly perfected and finally resolved, the execution may a. forthwith be applied for in the court of origin, b. on motion of the judgment obligee, c. submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party [Sec. 1, Rule 39] Note: Execution may only issue upon motion with notice of hearing. However, the judgment debtor need not be given advance notice or prior hearing of such motion for execution [Pamintuan, et al v. Muhoz, G.R. No. L-26331 (1968)] 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. The court cannot refuse execution. [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: 1. When the judgment has already been executed by the voluntary compliance thereof by the parties; 2. When a judgment has been novated by the parties;

Supervening event doctrine A supervening event can be invoked for the modification or alteration of a final judgment. This refers to: 1. Facts which transpire after judgment has become final and executory; 2. New circumstances which developed after the judgment has acquired finality; 3. 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 bear a direct effect upon the matters already litigated and settled or 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)] Quashal of a writ of execution-proper when: 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. L-26115 (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)]

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[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)]

b. Discretionary Execution Discretionary execution [Sec. 2, Rule 39] On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion 2. Several, separate or partial judgment May only issue upon good reasons

Execution upon judgments or final orders [Sec. 1, Rule 39]

1.

1.

2.

Upon the expiration of the period to appeal therefrom if no appeal has been duly perfected If the appeal has been duly perfected and finally resolved

Matter of right

Execution of a judgment or final order pending appeal 1. On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. 2. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. 3. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. The period to appeal where a 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

REMEDIAL LAW

appeal is improper and premature [JP Latex Technology, Inc. v. Ballons Granger Balloons, Inc., et al., G.R. No. 177121 (2009)] 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)] “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)] 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)] 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. L-59311 (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 non-transmissible, 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. L-23554 (1967)] Note: The remedy against an order granting execution pending appeal where the order is not founded upon good reasons is Certiorari. The fact that the losing party had also appealed from the judgment does not bar the certiorari proceedings as the appeal could not be an adequate remedy from such premature execution [1 Regalado 465, 2010 Ed.] 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)] Requisites for discretionary execution: 1. On motion of the prevailing party with notice to the adverse party

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Filed in the a. Trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, or b. Appellate court after the trial court has lost jurisdiction 3. Good reasons to be stated in a special order after due hearing [Sec. 2, Rule 39] 2.

After the trial court has lost jurisdiction, the motion may be filed in the appellate court [Bangkok Bank Public Company, Ltd. v. Lee, G.R. No.159806 (2006)] Stay of discretionary execution Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety [Sec. 3, Rule 39] A supersedeas is an auxiliary process designed to supersede enforcement of a trial court's judgment brought up for review. Its application is limited to the judgment from which an appeal is taken. It is used synonymously with a "stay of proceedings," and designates the effect of an act or proceeding which in itself suspended the enforcement of a judgment [1 Regalado 459, 2010 Ed.] General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution [Sec. 3, Rule 39]. Exception: However, the filing of the supersedeas bond does not entitle the judgment debtor to the suspension of execution as a matter of right. 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]

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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: 1. 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 2. 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 3. 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. 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)]

3. How a Judgment is

Executed

a. Execution by Motion or Independent Action 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 By independent from date of entry and action before it is barred by the statute of limitations [Sec. 6, Rule 39] The Statute of Limitations is 10 years from date of entry [Art. 1144(3), CC]. Note: The revived judgment may also be enforced by motion within 5 years from date of its entry and thereafter by action before it is barred by statute of limitations [Sec. 6, Rule 39].

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Hence, there are 4 chances for the enforcement of execution: (1) by motion, (2) by independent action, (3) by motion for revived judgment within 5 years from date of entry and thereafter, (4) by action before it is barred by statute of limitations. After these, it becomes dormant [Prof. Avena] Once the judgment is revived, 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)]

b. Issuance and Contents of a Writ of Execution Contents of the writ of execution 1. In the name of the Republic of the Philippines from the court which granted the motion 2. The name of the court, the case number and title, the dispositive part of the subject judgment or order 3. Requires the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms 4. In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. [Sec. 8, Rule 39] Dispositive portion as subject of execution General rule: The dispositive portion of the decision is that part that becomes the subject of execution [1 Regalado 412, 2010 Ed.] Exceptions: 1. Where there is ambiguity, the body of the opinion may be referred to for purposes of construing the judgment because the dispositive part of a decision must find support from decision’s ratio decidendi [1 Regalado 479, 2010 Ed.] 2. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision [1 Regalado 479, 2010 Ed.] 3. Where one can clearly and unquestionably conclude from the body that there was a mistake in the dispositive portion, the body of the

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decision will prevail [Metropolitan Cebu Water District v. Mactan Rock Industries, Inc., G.R. No. 172438 (2012)] To 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 1. 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. L39272 (1988)] 2. 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)] 3. Where non-parties voluntarily signed the compromise agreement or voluntarily appeared before court [Rodriguez v. Alikpala, G.R. No. L38314 (1974)] 4. Where the remedy of a person not a party to the case which he did not avail of, was to intervene in the case in question involving rights over the same parcel of land and said person in another case was adjudged buyer in bad faith thereof [Lising v. Plan, G.R. No. 50107 (1984)] 5. In an ejectment case, where 3rd party derived his right of possession from defendant particularly when such right was acquired only after filing of ejectment suit [Cordova v. Tornilla, A.M. No. MTJ94-997 (1995)] Remedies against 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 648, 2014 Bantam Ed.] Exceptions: Instances where errors may be committed prejudicial to the rights of a party, calling for correction by a higher court. Examples of these instances are: 1. When the writ varies the judgment; 2. When there has been a change in the situation of the parties rendering execution inequitable; 3. When execution is sought to be enforced against property exempt from execution; 4. When it appears that the controversy has never been submitted to the judgment of the court;

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5.

When the terms of the judgment are not clear enough and there remains room for interpretation; 6. When it appears that the judgment has already been satisfied; 7. When it appears the writ has been improvidently issued; 8. When it appears that the writ is defective in substance; 9. When the writ is issued against the wrong party; 10. When the writ was issued without authority. [1 Riano 649, 2014 Bantam Ed.] An order granting the issuance of the writ is not appealable, except where: 1. The order varies the terms of the judgment, or [J.M. Tuazon & Co. v. Estabillo, G.R. No. L-20610 (1975)], 2. Where, being vague, the court renders what is believed to be a wrong interpretation [1 Regalado 481, 2010 Ed.]

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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] 2. Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction, and 3. After notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. [Sec. 45, Rule 39] b.

c. Execution of Judgments for Money

RETURN OF 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] 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] Judgment not satisfied within 30 days 1. The officer shall report to the court and state the reason therefor. 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 1. 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

If the award is for payment of money, execution is enforced by 1. Immediate payment on demand 2. Satisfaction by levy 3. Garnishment of debts and credits [Sec. 9, Rule 39] [Prof. Avena] Note: Levy can only be made under Sec. 9 of Rule 39 (not Secs. 10 or 11) IMMEDIATE PAYMENT ON DEMAND Procedure 1. The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. 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

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over the said amount within the same day to the COC of the court that issued the writ. [Sec. 9(a), Rule 39] Procedure if the judgment oblige or his authorized representative is not present to receive payment 1. The judgment obligor shall deliver the aforesaid payment to the executing sheriff. 2. The latter 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 clerk of said court 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. 5. In no case shall the executing sheriff demand that any payment by check be made payable to him. [Sec. 9(a), Rule 39] SATISFACTION BY LEVY Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the command of the writ, a part or the whole of the judgment debtor’s property. [Fiestan v. CA, G.R. No. 81552 (1990)] Levy means the act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella, G.R. No. 21572 (1966)] If susceptible of appropriation, the officer removes and takes the property for safekeeping; otherwise the same is placed under sheriff’s guards. Without valid levy having been made, any sale of the property thereafter is void. [1 Regalado 487, 2010 Ed.] 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 immediately 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. 4. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. 5. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment. [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.] Note: Prof. Avena argued that the determination of whether or not execution may issue before the levy is not whether the action is a personal (sum of money) or a real action (real or personal property), but is more of whether the action is that of an in rem/quasi-inrem action, or an in personam action. If it is in rem/quasi-in-rem, when the judgment obligor dies after entry of judgment, the execution may issue before levy. If it is an in personam action, execution cannot be enforced. A special “break-open” order is an order from the court authorizing the sheriff to destroy, demolish or

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remove improvements on property subject of execution [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 rationalization behind this is that the writ of exeution 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)] A special order of demolition, on the other hand, 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]. GARNISHMENT OF DEBTS AND CREDITS Garnishment is considered as a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation [Bautista v. Barredo, G.R. No. L-20653 (1965)] 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. 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)] The ROC themselves do not require that the garnishee be served with summons or impleaded in the case in order to make him liable. All that is necessary for the trial court lawfully to bind the person of the garnishee or any person who has in his possession credits belonging to the judgment debtor is service upon him of the writ of garnishment [Perla v. Ramolete, G.R. No. L-60887 (1991)] Garnishment is not a violation of R.A. 1405 on the secrecy of bank deposits, as it does not involve an

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inquiry or examination of such deposit [China Banking Corp. v. Ortega, G.R. No. L-34964 (1973)] Notes: 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)] UP’s funds, being government funds, are not subject to garnishment. Moreover, the execution of the monetary judgment against the UP was within the primary jurisdiction of the COA [UP v. Dizon, G.R. No. 171182 (2012)] What may be garnished The officer may levy on 1. Debts due the judgment obligor and 2. Other credits, including a. Bank deposits b. Financial interests, c. Royalties d. Commissions and e. Other personal property not capable of manual delivery in the possession or control of third parties [Sec. 9(c), Rule 39] Procedure 1. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. 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. 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

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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 with respect to delivery of payment to the judgment obligee. [Sec. 9(c), 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)]

d. Execution of Judgments for Specific Acts

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 sell such property, describing it, and apply the proceeds in conformity with the judgment [Sec. 10(b), Rule 39]

Note: This is different from a special judgment under Section 12 which 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 in to consideration. [1 Regalado 486, 2010 Ed.] 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 in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. [Sec. 10(a), 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 oblige. 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] Delivery of personal property In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided [Sec. 10(e), Rule 39]

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e. Execution of Special Judgments 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 judgment in mandamus to reinstate petitioner as chief clinic of the hospital [Vital-Gozon v. CA, G.R. No. 101428 (1992)] A judgment directing defendant to remove a fence from a certain place is a special judgment [Marquez v. Marquez, G.R. No. 47792 (1941)]

f. Effect of Levy on Third Persons The levy on execution shall create a lien in favor of the judgment obligee over the right, 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-11-2972 (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)]

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4. Properties Exempt from

Execution

General rule: Except as otherwise expressly provided by law, 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, 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]

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benefits from private retirement systems of companies and establishments with limitations [R.A. 4917] laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [Art. 1708, CC] 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. L-5329 (1909)]

5. Proceedings Where Property

Claimed by Third Persons

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 Reivindicatory action The aforementioned 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

REMEDIAL LAW

[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.] 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)] When to file Any time, as long as the sheriff has the possession of the property levied upon, or before the property shall have been sold under execution. Note: This applies only with terceria. For independent reinvidicatory actions, the third-party may make the claim before the action prescribes [Prof. Avena] 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 c. The court may command that the property be released from the mistaken levy and restored to rightful owner or possessor d. If claimant’s proofs do not persuade, the claim will be denied by the court

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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 Independent of the foregoing, a third-party claimant may also avail of the remedy of terceria provided in now Sec. 16, Rule 39 [Sy v. Discaya, G.R. No. 86301 (1990)] Procedure and bond a. Claimant serves on the officer making levy an affidavit of his title and a copy thereof to judgment creditor b. Officer shall not be bound to keep 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. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. c. 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. d. The officer shall not be liable for damages for the taking or keeping of the property, to any thirdparty claimant if such bond is filed. e. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. [Sec. 16, 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)]

REMEDIAL LAW

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 who filed a frivolous or plainly spurious claim [Sec. 16, Rule 39]. The aforesaid remedies are nevertheless without prejudice to any proper action that third-party claimant may file to vindicate his claim over the property. This action is separate and independent [Sy v. Discaya, G.R. No. 86301 (1990)] Procedure a. He must institute an action, distinct and separate from that which the judgment is being enforced, with the court of competent jurisdiction b. 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. c. In such proper action, validity and sufficiency of title of claimant will be resolved. d. A writ of preliminary injunction against sheriff may be issued [Sy v. Discaya, G.R. No. 86301 (1990)]

a. In Relation to Third Party Claim 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.]

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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.] b.

6. Rules on Redemption When available Only for real property, since nothing in the ROC provides for redemption of personal property [Sec. 27, Rule 39] The purchaser and judgment debtor may agree that the period of redemption be shortened from the registration of the certificate of sale. In which case, the the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon [Lazo v. Republic Surety & Insurance Co. (1970)] Who may redeem a. Judgment obligor, or his successor in interest in the whole or any part of the property b. A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. [Sec. 27, Rule 39] Note: If the lien of the creditor is prior to the judgment under which the property was sold, he is not a redemptioner and therefore cannot redeem property [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] If the lien of the creditor is prior to the judgment under which the property was sold: a. He is not a redemptioner;

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 Within 60 days from SUBSEQUENT last redemption REDEMPTIONERS [Sec. 28, Rule 39] Judgment obligor shall have the entire period of one year from date of registration of sale to redeem the property [Sec. 33, Rule 39] If the judgment obligor redeems, no further redemption shall, be allowed and he is restored to his estate [Sec. 29, Rule 39] Note: There is no extension or interruption of redemption period [See Sec. 28, Rule 39] 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 4. If purchaser is also a creditor having a PRIOR LIEN to that of 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 4. Amount of any LIENS held by said last redemptioner prior to his own, also with interest

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[Sec. 28, Rule 39] If redemption is made by the judgment obligor a. No further redemption is allowed b. He is restored to his estate [Sec. 29, Rule 39] 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. From that moment, there shall be no further redemption. 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] Duties upon redemption a. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. b. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. [Sec. 29, Rule 39] RIGHTS PENDING REDEMPTION Right of judgment obligee pending redemption 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. If 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 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. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor. [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: • A particular description of the real property sold; • The price paid for each distinct lot or parcel; • The whole price paid by him; • A statement that the right of redemption expires one year from the date of the registration of the certificate of sale 2. Such certificate must be registered in the registry of deeds of the place where the property is situated [Sec. 25, Rule 39] 3. From registration of said certificate, the one year redemption period starts [Sec. 28, Rule 39] 4. 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. If no redemption be made within one year from the date of the registration of the certificate of sale; or, 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

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The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. 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. [Sec. 33, Rule 39]

Note: Hence, the certificate of sale of real property does not confer any right to the possession, much less the ownership, of the real property purchased. It is the deed of sale executed by 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, 1. fails to recover the possession thereof, or 2. 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, he may on motion 1. in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or 2. have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original 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 successorin-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

REMEDIAL LAW

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)]

7. Examination of Judgment

Obligor When Judgment is Unsatisfied

When applicable: When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, a. 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, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfactions of the judgment. b. Limitations: No judgment obligor shall be 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] A judgment obligor may no longer be examined after the lapse of the five years within which a judgment may be enforced by motion [Umali v. Coquia, G.R. No. L-46303 (1988)] Order for payment in fixed monthly installments a. If, upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal services are more than necessary for the support of his family, the court may order that he pay the judgment in fixed monthly installments, and b. Upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt. [Sec. 40, Rule 39]

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8. Examination of Obligor of

Judgment Obligor

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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)]

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 to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him [Sec. 37, Rule 39]

OTHER REMEDIES

Procedure; effect a. The court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. b. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service, and c. 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]

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]

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, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, 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]

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]

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 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]

9. 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

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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 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)] Dual aspect of res judicata 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.] Bar by former judgment Requires identity of parties, subject matter, and causes of action

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

Absolute Bar to: Conclusive as to (a) all matters directly matters directly adjudged; and adjudged and actually (b) those that might litigated have been adjudged Claim Preclusion Issue Preclusion [1 Riano 683-684, 2011 Ed.] The dismissal by the SC of a petition for review on certiorari through a minute resolution is an adjudication on the merits and constitutes a bar to relitigation under res judicata [Sy v. Tuvera, G.R. No. 76639 (1987)] 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.]

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In a land registration proceeding filed by the plaintiff after he had been declared the owner of the land involved in a civil case, the opposition thereto filed by the defendant who lost in said civil case is barred in the land registration proceeding under the doctrine of res judicata. All the elements are present and it is of no moment that the court in the civil case was in the exercise of general jurisdiction and in the land registration case, in the exercise of special or limited jurisdiction [Valiso v. Plan, G.R. No. 55152 (1986)] 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 it c. Judgment UPON MERITS d. Between the TWO CASES, there is: 1. IDENTITY OF PARTIES 2. IDENTITY OF SUBJECT MATTER 3. IDENTITY OF 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 of ROC: If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to 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 order Against a specific thing Probate of a will or administration of the estate of a deceased person

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Conclusive as to Title of the thing The will or administration. However, the probate of a will or granting of letters of administration shall

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Judgments or final order

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Conclusive as to only be prima facie evidence of the death of the testator or intestate;

in respect to the personal, political, or legal condition or status of a particular person or his relationship to another [1 Riano 542, 2011 Ed.]

Condition, status or relationship of the person,

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.]

Res judicata

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 or subject matter of the two suits is the same [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 it c. Judgment UPON MERITS d. Between the TWO CASES, there is: 1. IDENTITY OF PARTIES 2. IDENTITY OF ISSUES [1 Regalado 529-531, 2010 Ed.]

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 to it all future cases where the facts are substantially the same [1 Riano 533, 2011 Ed.]

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

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

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

10. Enforcement and Effect of

Foreign Judgment or Final Orders

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 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

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[Philippine Aluminum v. Fasgi Enterprises, G.R. No. 137378 (2000)] Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts. [1 Regalado 536, 2010 Ed.] 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)]

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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 Rules of Court [Roehr v. Rodriguez, G.R. No. 142480 (2003)]

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 Regalado 536, 2010 Ed. citing Raytheon v Rouzie, G.R. No. 162894 (2008)] 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 Judgment is In judgments against a CONCLUSIVE upon specific thing (in rem) the title to the thing Judgment is PRESUMPTIVE evidence of a right as In judgments against a between parties and person (in 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 Page 156 of 481

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IV. PROVISIONAL REMEDIES

b. c. d. e.

A. General Matters

Notes: a. 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)] b. Support pendente lite is not part of the 2018 Bar syllabus.

1. Nature of Provisional

Remedies

Nature of provisional remedies Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies.[1 Regalado 684, 2010 Ed.] 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.] They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter [Calo v. Roldan, G.R. No. L-252 (1946)] 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 [Pahila-Garrido v. Tortogo, et. al., G.R. No. 156358 (2002)]

Preliminary injunction [Rule 58] Receivership [Rule 59] Replevin [Rule 60] Support pendente lite [Rule 61]

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.] Inferior courts may also grant all appropriate provisional remedies in an action pending with it and is within its jurisdiction [Sec. 33 (1), BP 129] Enforcement of writs General rule: The enforcement of said writs outside the territorial jurisdiction of the inferior court is allowable [1 Regalado 685, 2010 Ed.] What is required is merely that the sheriff or deputy sheriff must seek the assistance of the sheriff of the place where the writ is to be executed [Administrative Circular No. 12] Exceptions: In cases of preliminary injunction and injunction, the rule is that the injunction can only be enforced within the territorial jurisdiction of that particular court [Sec. 21, B.P. 129]

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. [1 Regalado 684, 2010 Ed.] Kinds of provisional remedies a. Preliminary attachment [Rule 57] Page 157 of 481

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B. Preliminary Attachment The provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered [Davao Light v. CA, G.R. No. 93262 (1991)] 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. 1(f), Rule 57 [PCIB v. Alejandro, G.R. No. 175587 (2007)] 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. Final or 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)].

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1. Grounds for issuance In an action 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 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 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 a 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. [Sec. 1, Rule 57] Notes: a. These grounds are exclusive [PCIB v. Alejandro, G.R. 175587 (2007); Aboitiz v. Cotabato Bus Line Co. G.R. No. L-35990 (1981)] b. Item (c) above makes no distinction between real and personal property [Riano] c. Item (d) above 1. A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention not to pay. Fraudulent intent cannot be inferred from the debtor’s inability to pay [PCL Industries Manufacturing v. CA, G.R. No. 147970 (2006)] 2. The delivery of counterfeit money or knowingly issuing a bounced are considered as grounds under this rule [Riano] d. Item (f) above: The persons on whom summons may be served by publication

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Residents defendants whose identity or whose whereabouts are unknown [Sec. 14, Rule 14] Resident defendants who are temporarily out of the country [Sec. 16, Rule 14]

2. Requisites for Issuance a. b.

c. d.

The case must be any of those where preliminary attachment is proper [Sec. 1, Rule 57] Applicant must file a motion with notice and hearing by the court in which the action is pending, or by the CA or the SC (but an order of attachment may be issued ex parte [Sec. 2, Rule 57] Applicant, or some other who personally knows the facts, must file an affidavit showing required facts (stated below) [Sec. 3, Rule 57] Applicant must post a bond executed to adverse party in the amount fixed by the court in its order granting the issuance of the writ [Sec. 3-4, Rule 57]

3. Issuance and Contents of

Order of Attachment; Affidavit and Bond

When applied for a. At the commencement of the action; or b. At any time before the entry of judgment [Sec. 1, Rule 57] Who may apply It may be applied for by the plaintiff or 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] Methods to procure preliminary attachment a. Writ may be prayed for in the complaint itself providing the allegations warranting its issuance [1 Regalado 690, 2010 Ed.] b. May be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in the original complaint [Sec. 2, Rule 57] Note: Where the judgment is already final and executory, a motion for execution is the remedy, and not an application for preliminary attachment [1 Regalado 690, 2010 Ed.]

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Three stages in the grant of preliminary attachment a. Court issues the order granting the application 1. The order granting the writ is based on the motion filed by the party applying 2. It can only be signed by the judge himself b. Writ of attachment issues pursuant to the order granting the writ 1. It is based on the order and shall contain the details on the implementation of the order 2. May only be signed and issued either by the clerk of court or the presiding judge c. The writ is implemented [1 Regalado 692, 2010 Ed.] Note: For the initial two stages, it is not necessary that jurisdiction over person of defendant be first obtained. However, once implementation of writ commences, court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act. Therefore it is required that when the proper officer commences implementation of the writ of attachment, service of summons should be simultaneously made [Cuartero v. CA, G.R. No. 102448 (1992)] Issuance of the order a. The order may be issued either 1. Ex parte, or 2. Upon motion with notice and hearing b. The order is issued by the court in which the action is pending, or the CA, or the SC [Sec. 2, Rule 57] Contents of the order 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] Affidavit and bond An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that

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a sufficient cause of action exists, the case is one of those mentioned in Sec. 1, Rule 57 there is no other sufficient security for the claim sought to be enforced by the action, and 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.

bond or by proof that the attachment was irregularly issued, as long as the court shall finally adjudge that the attaching party was not entitled thereto [Calderon v. IAC, et. al. G.R. No. 74696 (1987)]

The affidavit, and the bond required by Sec. 4, must be duly filed with the court before the order issues. [Sec. 3, Rule 57]

General rule: Prior or contemporaneous service of summons [Sec. 5, Rule 57]

a. b. c. d.

Construction of rules for issuance of writ These are strictly construed against the applicant, such that if the requisites for its grant are not shown to be all present, the court shall refrain from issuing it, otherwise, the court which issues it acts in excess of its jurisdiction [Wee v. Tankiansee, G.R. No. 171124, (2008)] A general averment in the affidavit is insufficient to support the issuance of the writ. In averring fraud under Sec. 1, Rule 57, the affidavit must contain a. such particulars as to how the fraud was committed b. statements of factual circumstances to show that respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay. [Wee v. Tankiansee, G.R. No. 171124, (2008)] 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] Moral and exemplary damages may only be recovered where the attachment was alleged and proved to be malicious [Calderon v. IAC, et. al. G.R. No. 74696 (1987)]

4. Rule on Prior or

Contemporaneous Service of Summons

A writ of attachment may be issued ex parte even before the summons is served upon the defendant but a writ may not be implemented until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void [Riano] Exceptions: 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] Attachment of the property of a non-resident in the Philippines allows an in personam action against a nonresident to proceed even if jurisdiction over their person was not acquired, and it will be treated as though the proceeding was in the nature of an in rem action [Mabanag v. Gallemore, G.R. No. L-825 (1948)]

5. Manner of Attaching Real

and Personal Property; When Property Attached is Claimed by Third Persons

The bond shall only be applied to all damages and costs sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment [Excellent Quality Apparel v. Visayan Surety & Insurance Corp., G.R. 21205 (2015)]

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,

Liability on the bond exists even if the attachment has been dissolved, whether by the filing of a counter-

Exception: The adverse party makes a deposit with the court from which the writ is issued, or gives a counter-

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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] 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 2. 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 3. 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 identification of the land or interest to be affected shall be included in the registration of such attachment b. Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor c. Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating

REMEDIAL LAW

that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ d. Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ e. The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. 1. 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] 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. But the first attachment shall have priority over subsequent attachments [Riano] Remedies against third-person claimants 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. A third person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and 2. Such person serves 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]

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Substantially identical procedure as in terceria in Sec. 16, Rule 39 [1 Regalado 712, 2010 Ed.] File an independent action to recover property [Imani v. Metropolitan Bank & Trust Company, G.R. No.187023 (2010)]; or File motion for intervention (available only before judgment is rendered) [Sec 1, Rule 19] 3.

b. c.

Note: The last method was allowed in the case of Gopiao v. Metropolitan Bank & Trust Co. [G.R. No. 188931 (2014)]

6. Discharge of Attachment

and Counter-Bond

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] 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 [Sec .3, Rule 57] 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.] Note: There is a difference between the bond for issuance of writ and bond for lifting the writ. 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 [Sec. 5 and 12, Rule 57] – This is to secure the payment of the judgment to be recovered [1 Regalado 709, 2010 Ed.]

REMEDIAL LAW

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. L48756 (1982)] Effect of dissolution 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)] b. That bond is executed to adverse party conditioned that the applicant will pay all the costs which may be adjudged to 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] c. 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)] After procuring the dissolution of the attachment by filing a counterbond, the attachment debtor is not precluded from moving for the discharge of the attachment on the ground of improper issuance [Mindanao Savings & Loan Assoc. v. CA, G.R. No. 84481 (1989)] Filing a counter-bond is the only remedy to dissolve an attachment issued on the same ground as the main cause of action [Metro, Inc. v. Laras Gift and Décor, Inc. G.R. No. 171741 (2009)] But where there are irregularities in the issuance and service of the writ, the attachment may still be quashed on the ground of such irregularities [Torres v. Satsatin, G.R. No. 166759 (2009)] Claim for damages on account of improper, irregular, or excessive attachment a. When to be filed 1. Before trial, or 2. Before appeal is perfected, or 3. Before the judgment becomes executory b. Requirements 1. Due notice to the attaching party and his surety or sureties 2. Notice must set forth the facts showing the right of the party to damages and the amount thereof.

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3.

Damages may be awarded only after the proper hearing, and shall be included in the judgment on the main case. [Sec. 20, Rule 57]

[Sec. 11, Rule 57]

7. Satisfaction of Judgment

Out of Property Attached

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. [Sec. 15, 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 said lien continues until the debt is paid, or the sale is had under execution issued on the judgment or until the judgment is satisfied, or the attachment discharged or vacated in the same manner provided by law [Lim v. Sps. Lazaro, G.R. No. 185734 (2013)] Exception: 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, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. Page 163 of 481

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REMEDIAL LAW

C. Preliminary Injunction

between them [Power Sites and Signs Inc v. United Neon, G.R. No. 163406 (2009)]

1. Definitions and Differences:

May a preliminary injunction issue against acts already consummated?

Preliminary Injunction and Temporary Restraining Order (TRO)

General rule: Injunction could not lie when the acts sought to be enjoined have already become a fait accompli or an accomplished or consummated act [Aznar Bros. v. CA, G.R. No. 128102 (2000)]

Injunction Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act [1 Regalado 719, 2010 Ed.]

Exception: If the acts complained of are continuing in nature and were derogation of plaintiff’s rights at the outset [Zomer Development Company Inc. v. International Exchange Bank, G.R. No. 150694 (2009)]

In its customary usage, injunction is a judicial process operating in personam [1 Regalado 719, 2010 Ed.]

Temporary restraining order (TRO) A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction [Bacolod City Water v. Labayen, G.R. No. 157494 (2004)]

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. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction [Sec. 1, Rule 58] Injunction as main action Independent action [Urbanes v. CA, G.R. No. 117964 (2001) Seeks a judgment embodying a final injunction [Urbanes v. CA, G.R. No. 117964 (2001) Assailed by timely appeal (since it is a final order) [Sec. 1, Rule 41]

Preliminary injunction Ancillary; exists only as part or incident of an independent action or proceeding [Urbanes v. CA, G.R. No. 117964 (2001) Seeks to preserve the status quo until merits can be heard [Urbanes v. CA, G.R. No. 117964 (2001) Assailed by petition for certiorari (since it’s an interlocutory order) [Sec. 1, Rule 41]

Purpose: To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) [Knecht v. CA, G.R. No. 56122 (1993)] In cases of a mandatory injunction, the injunction should not establish new relations between the parties but merely re-establish the pre-existing relationship

The application for a TRO 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(d), Rule 58] Status quo order A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order [1 Regalado 719, 2010 Ed.] It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy [1 Regalado 719, 2010 Ed.]

2. Requisites A preliminary injunction or temporary restraining order may be granted only when a. The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded 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,

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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. c. When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contem-poraneous 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] The applicant must establish: a. The existence of a clear and unmistakable right that must be protected; that is, right in esse b. A material and substantial invasion of such right; and c. An urgent and paramount necessity for the writ to prevent serious damage d. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury [Marquez v. Sanchez, G.R. No. 141849, (2007)] 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

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give rise to a cause of action [Marquez v. Sanchez, G.R. No. 141849 (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 produce 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 apply the remedy of injunction [Social Security Commission v. Bayona, G.R. No. L-13555 (1962)]

3. Kinds of Injunction 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, in which case it shall be known as a [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 and among the parties [WT Construction, Inc. v. DPWH, G.R. No. 163352 (2007)]

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Preliminary prohibitory injunction Purpose is to prevent a person from the performance of a particular act [1 Regalado 720, 2010 Ed.] The act has not yet been performed and is thus subject of the prohibitory injunction [BPI v. Hontanosas, G.R. 157163 (2014)] Status quo is preserved [1 Regalado 721, 2010 Ed., citing Rivera v. Florendo, G.R. No. 57586 (1986)]

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Preliminary mandatory injunction Purpose is to require a person to perform a particular act [Sec 1, Rule 58] There was an act that has already been performed resulting in violation of the rights of another [Felipe v. Rodolfo, G.R. 19300 (2013)] Status quo is restored [1 Regalado 731, 2010 Ed., citing Dayrit v. Delos Santos, G.R. No. 5005 (1911)]

When preventive injunction does not lie; examples a. To restrain collection of taxes [Sec. 218, NIRC], except that when in the opinion of the Court of Tax Appeals (CTA) the collection by the aforementioned government agencies may jeopardize the interest of the Government and/or the taxpayer, the CTA any stage of the proceeding may suspend the said collection and require the taxpayer either to deposit the amount claimed or to file a surety bond for not more than double the amount with the CTA [Sec. 11, R.A. 1125, as amended by R.A. 9282] b. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support [Saavedra v. Estrada, G.R. No. 33795 (1931)] c. To restrain a mayor proclaimed as duly elected from assuming his office [Cereno v. Dictado, G.R. No. L-81550 (1988)] d. To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner [Tayag v. Lacson, G.R. No. 134971 (2004)] e. Against consummated acts [PNB v. Adi, G.R. No. L-52823 (1982); Rivera v. Florendo, G.R. No. L57586 (1986); Ramos, Sr. v. CA, G.R. No. 124354 (1989)]

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When mandatory injunction does not lie; examples a. To compel cohabitation [Arroyo v. Vasquez, G.R. No. 17014 (1921)] b. Cancellation of attachment [Levy Hermanos v. Lacson, G.R. No. L-47285 (1940)] c. Release imported goods pending hearing before the Commissioner of Customs [Commissioner of Customs v. Cloribel, G.R. No. L-20266 (1967)] d. To take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos, G.R. No. L-27849 (1974)]

4. When Writ May 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] 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)]

5. Grounds for Issuance of

Preliminary Injunction

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 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

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[Sec. 3, Rule 58] Note: The effect of the injunction would not be to create a new relation between the parties which was arbitrarily interrupted by the defendant [1 Regalado 720, 2010 Ed.]

6. Grounds for Objection to, or

for the Dissolution of Injunction or Restraining Order

Upon a showing of its insufficiency 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 it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. [Sec. 6, Rule 58]

Issuance

a. b.

Grounds

72-hour TRO

20-day TRO heard on notice The court to which the application for preliminary injunction was made, may issue ex parte a TRO to be effective only for a period of 20 days from service on the party or person sought to be enjoined, except as herein provided Within the 20-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted.

7. Duration of TRO 20-day TRO If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be

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Subsequent proceedings

If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury

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The court shall also determine, within the same period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.

72-hour TRO

The executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a TRO effective for only 72 hours from issuance but he shall immediately comply with the provisions of Sec. 5, Rule 58 as to service of summons and the documents to be served therewith Thereafter, within the aforesaid 72 hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the TRO exceed 20 days, including the original seventytwo hours provided herein.

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[Sec. 5, Rule 58, as amended by A.M. No. 07-7-12-SC] Notes: a. No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. b. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued. c. However, if issued by the CA or a member thereof, the TRO shall be effective for 60 days from service on the party or person sought to be enjoined. A restraining order issued by the SC or a member thereof shall be effective until further orders. d. The trial court, the CA, the Sandiganbayan or the CTA that issued a writ of 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, as amended by A.M. No. 07-7-12-SC] Upon the expiration of the non-extendible period, the TRO is automatically terminated. No judicial declaration necessary [Golden Gate Realty Corporation v. Intermediate Appellate Court, et al., 152 SCRA 684 (1987)]

8. In relation to R.A. 8975; Ban

on Issuance of TRO or Writ of Injunction in Cases involving Government Infrastructure Projects

a.

No court, except the SC, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: 1. Acquisition, clearance and development of the right-of-way and/or site or location of any national government project

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Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof; 3. Commencement prosecution, execution, implementation, operation of any such contract or project; 4. Termination or rescission of any such contract/project; and 5. The undertaking or authorization of any other lawful activity necessary for such contract/project. b. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. c. This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. d. If after due hearing the court finds that the award of the contract is null and void, the court may, if appropriate under the circumstances, award the contract to the qualified and winning bidder or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under existing laws [Sec. 3, R.A. 8975] 2.

Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect [Sec. 4, R.A. 8795] In addition to any civil and criminal liabilities, any judge who shall issue a TRO, preliminary injunction, or preliminary mandatory injunction in violation of Sec. 3, R.A. 8795, shall suffer the penalty of suspension of at least 60 days without pay [Sec. 6, R.A. 8795]

9. 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

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order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines 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]

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D. Receivership Receiver A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent 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)] 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(d), 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. Receivership under Rule 59 is ancillary to the main action [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)]

1. Cases When Receiver May

be Appointed/Requisites

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

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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; 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 judg-ment, 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] Formerly included in this provision are situations such as when a corporation has been dissolved, is insolvent, etc. which are now governed by the Corporation Code [1 Regalado 745, 2010 Ed.] 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)]

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d. After final judgment, a receiver may be appointed as an aid to the execution of 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)]

2. Requirement before

Issuance of an Order

Procedure 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 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] Application is made by motion when the receivership sought is only an incident to the main action [Regalado] [1 Regalado 747, 2010 Ed.] 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] Application may be denied or reviewer discharged a. When the applicant, in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of

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the acts, omissions, or other matters specified in the application as ground for such appointment. b. It is shown that his appointment was obtained without sufficient cause [Sec. 3, Rule 59] c. If either the applicant’s or the receiver’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith [Sec. 5, Rule 59 Appointment of a receiver is not proper where the rights of the parties, one of whom is in possession of the property, are still to be determined by the trial court [Vivares v. Reyes, G.R. No. 155408 (2008)]

3. General Powers of a

Receiver

Who is a receiver A person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court. [1 Regalado 745, 2010 Ed.] This is an instance where a person who is not the real party in interest is authorized to sue as a representative party under Sec. 3, Rule 3 [Sec 6, Rule 59] 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]

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Who may be appointed The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person [Alcantara v. Abbas, G.R. No. L-14890 (1963)] A clerk of court should not be appointed as a receiver as he is already burdened with his official duties [Abrigo v. Kayanan, G.R. No. L-28601 (1983)] 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 a. No action may be filed by or against a receiver without leave of the court which appointed him [Sec. 6, Rule 59] b. 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 [De la Riva v. Molina Salvador, G.R. L-10106 (1915)]

4. 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]

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b. Receiver’s bond The receiver shall file a 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] Damages resulting from appointment Damages resulting from appointment The right is statutory

Damages arising after appointment Damages which arise due to receiver’s negligence or mismanagement The right rests on general principles of law

The damages may be caused before the Liability rests on the receiver qualifies or mismanagement or takes possession of the negligence of receiver property The applicant’s bond is The receiver’s bond is responsible responsible [Molina v. Somes, G.R. L-7308 (1913)]

5. 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 to all interested parties 3. Hearing 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

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defeated party, or apportioned, as justice requires [Sec. 8, Rule 59]

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E. Replevin

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)] 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 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. L44537 (1978)] Available before defendant answers [Sec 1, Rule 60] Bond is double the value of the

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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 from commencement but before entry of judgment [Sec 1, Rule 57] Bond is fixed by the court [Sec 4, Rule 57]

property[Sec 2(d), Rule 60] Extends only to personal property capable of manual delivery [Machinery & Engineering Supplier Inc., v. CA. G.R. L-7056 (1964)] Available to recover personal property even if the same is not being concealed, removed, or disposed of [Machinery & Engineering Supplier Inc., v. CA. G.R. L-7056 (1964)]

Preliminary attachment Extends to all kinds of property whether real, personal, or incorporeal [Machinery & Engineering Supplier Inc., v. CA. G.R. L-7056 (1964)] Attachment to recover possession of personal property unjustly detained presupposes that the same is being concealed, removed or disposed of to prevent its being found or taken by the applicant [1 Regalado 754, 2010 Ed.]

1. When Writ May 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] Who may avail While Sec. 1 of Rule 60 formerly provided for the writ of replevin at the instance of the plaintiff, the same provisional remedy was held to be available to the defendant on his counterclaim [Pongos v. Hidalgo Enterprises, Inc., G.R. No. L-3226 (1949)] and to any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained. Sec. 1 has been accordingly amended [1 Regalado 754, 2010 Ed.]

Does the applicant have to be the holder of the legal title to the property?

General rule: No. 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)] Primarily, the action of replevin is possessory in character and determines nothing more than the right of possession. However, when the title to the

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property is distinctly put in issue by the defendant's plea, the question of ownership may be resolved in the same proceeding because a replevin action is sufficiently flexible to authorize a settlement of all equities between the parties, arising from or growing out of the main controversy [Chiao Liong v. CA, G.R. No. 106251 (1993)]

2. Requisites The applicant must show by his own affidavit or that of some other person who personally knows the facts the items stated in Part E.3 (Affidavit and bond; redelivery bond of this (Provisional Remedies) reviewer b. The applicant must also give a bond [Sec. 2, Rule 60] a.

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]

3. Affidavit and Bond;

REMEDIAL LAW

The payment to adverse party of such sum as he may recover from the applicant in the action [Sec. 2, Rule 60] 2.

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 if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof How return of property may be required File with the court where the action is pending a bond 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]

4. Sheriff’s Duty in the

Redelivery Bond

Contents of the affidavit The affidavit shall 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 a. Executed to the adverse party b. Double the value of the property as stated in the affidavit c. Conditions 1. The return to of property to adverse party if such return be adjudged, and

Implementation of the Writ; When Property is Claimed by Third Party

a. Sheriff’s Duty in Implementation 1.

2.

3.

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. If the property or any part thereof be concealed in a building or enclosure, the sheriff must 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. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon

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receiving his fees and necessary expenses for taking and keeping the same. [Sec. 4, Rule 60] 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 property and by discharging the replevin bond [Rivera v. Vargas, G.R. No. 165895 (2009)] Disposition of property by sheriff 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 is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party [Sec. 6, Rule 60]

b. When Property Claimed by Third Party 1. 2.

3.

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, and Such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant The sheriff shall not be bound to keep the property under replevin or deliver it to the applicant

REMEDIAL LAW

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. 5. In case of disagreement as to such value, the court shall determine the same. 6. 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. [Sec. 4, Rule 60] 4.

Note: The procedure in Sec. 7, Rule 60 is similar to that in third-party claims in execution [Sec. 16, Rule 39] and in attachment [Sec. 14, Rule 57] Difference in service of affidavits 1. Sec. 14, Rule 57 – affidavit is served upon the sheriff while he has possession of the attached property 2. Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has possession (in connection with Sec. 6, Rule 60) Judgment After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs [Sec 9, Rule 60] Recovering damages on an applicant’s bond Requirements a. That the defendant- claimant has secured a favorable judgment the main action, meaning that the plaintiff has no cause of action and was not, therefore, entitled to the replevin; b. That 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. That due notice be given to the other party and his surety or sureties, notice to the principal not being sufficient; d. That there should be a proper hearing and the award for damages should be included in the final judgment [DBP v. Carpio, G.R. No. 195450 (2017)]

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Note: DBP v. Carpio states that the same requirements apply when recovering 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)] The surety cannot be liable for payment of the judgment for damages rendered against the plaintiff for fraudulent or wrongful acts unconnected with the defendant’s deprivation of possession via replevin by the plaintiff [1 Regalado 761-762, 2010 Ed.]

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V. SPECIAL CIVIL ACTIONS

REMEDIAL LAW

Ordinary civil action action is real [Secs. 12, Rule 4]

Special civil action

A. General Matters 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]

Initiated by complaint [Sec. 5, Rule 1]

Some are initiated by complaint, some by petition [1 Regalado 770, 2010 Ed.]

It may be filed initially either in the MTC or the RTC

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.]

2. Ordinary Civil Actions v.

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]

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.]

Governed by ordinary rules [Sec. 3, Rule 1]

Also governed by ordinary rules but subject to specific rules prescribed [Sec. 3, Rule 1]

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]

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 determined by either the residence of the parties when action is personal or by the location of the property when the

Venue is generally governed by the general rules on venue, except as otherwise indicated by special rules [1 Regalado 771, 2016 Ed.]

How initiated Special civil actions initiated by complaint a. Interpleader [Rule 62] b. Expropriation [Rule 67] c. Foreclosure of real estate mortgage [Rule 68] d. Partition [Rule 69] e. Forcible entry and unlawful detainer [Rule 70]

Special civil actions initiated by petition a.

Declaratory relief [Rule 63] b. Review of the adjudication of COMELEC/COA [Rule 64] c. Certiorari [Rule 65] d. Prohibition [Rule 65] e. Mandamus [Rule 65] f. Quo warranto [Rule 66] g. Contempt [Rule 71]

3. Jurisdiction and Venue Jurisdiction over special civil actions is determined by the Constitution [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

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otherwise subject to special rules for special civil actions (e.g. quo warranto) [1 Regalado 771, 2010 Ed.] Special civil action

Jurisdiction Personal Property: MTC: If value not more than P300,000 outside Metro Manila, or not more than P400,000 in Metro Manila (B.P. Blg. 129, Sec. 33) RTC: If value exceeds P300,000 outside Metro Manila, or P400,000 in Metro Manila, or if incapable of pecuniary estimation [Sec. 19, B.P. 129]

INTERPLEADER Real Property: MTC: assessed value not more than P20,000 outside Metro Manila or not more than P50,000 in Metro Manila [Sec. 33, B.P. 129] RTC: If value exceeds P20,000 if outside Metro Manila, or P50,000 if in Metro Manila, or incapable of pecuniary estimation [Sec. 19, B.P. 129] General rule: In the appropriate RTC, since the subject in declaratory relief is incapable of pecuniary estimation. DECLARATORY RELIEF

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, supra.

Venue

Apply Rule 4: Real action: If the action affects title to or possession of real property, venue is where the real property involved or a portion thereof is situated [Sec. 1, Rule 4] Personal action: All other actions - At the election of the plaintiff Where plaintiff or any of the principal plaintiffs reside; or Where the defendant or any of the principal defendants reside/s; or In case of a non-resident, where he may be found [Sec. 2, Rule 4]

Apply Rule 4 (supra)

REVIEW OF JUDGMENTS AND FINAL ORDERS OF COMELEC/COA

SC

SC

CERTIORARI/ PROHIBITION/ MANDAMUS

RTC, CA, SC; Sandiganbayan, in aid of its appellate jurisdiction; COMELEC, in election cases involving an act or omission by MTC or RTC, in aid of its appellate jurisdiction.

RTC where the respondent is situated, where petition relates to an act or omission of a corporation, board, an officer, or person [Rule 65, Sec. 4]

5. QUO WARRANTO

RTC, CA, SC; Sandiganbayan, which has exclusive original jurisdiction over quo warranto cases filed by the PCGG

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COMELEC, exclusive jurisdiction over cases falling under Omnibus Election Code Special Commercial Courts, for quo warranto against duly licensed associations. (Corporation Code rules apply, not the Rules of Court.) 6. EXPROPRIATION 7. JUDICIAL FORECLOSURE 8. PARTITION FORCIBLE ENTRY AND UNLAWFUL DETAINER

CONTEMPT

REMEDIAL LAW

RTC

If commenced by the Solicitor General, it may be filed with RTC Manila, CA, or SC Sandiganbayan has exclusive original jurisdiction on quo warranto arising or that may arise in cases filed under EO 1,2,14, 14-A but this must be in aid of its appellate jurisdiction and not exclusive of the SC. Apply Rule 4 (Supra)

RTC

Apply Rule 4 (Supra)

RTC

Apply Rule 4 (Supra)

MTC

Apply Rule 4 (Supra)

MTC, RTC, CA, SC

If committed against RTC or a court of equivalent or higher rank, or officer appointed by it: File with such court If committed against a first-level court: File with RTC of the place in which lower court is sitting If act was committed against persons or entities exercising quasi- judicial functions: File with RTC

B. Interpleader Nature of interpleader An Interpleader is a remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment of the obligation [Beltran v. PHHC, G.R. No. L-25138 (1969)] 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 v. intervention Interpleader Intervention Ancillary action, i.e. Original action there is a pending action Intervenor claims an Plaintiff either has interest that is adverse 1. No interest or; to at least one of the 2. An interest in the existing parties, or will subject matter be adversely affected undisputed by the by judgment in favor of other parties either of the existing parties Defendants to a Defendants are sued to complaint-inbe impleaded intervention are parties to a pending suit [1 Regalado 321, 2010 Ed.]

1. Requisites for Interpleader a.

The plaintiff clams no interest in the subject matter or his claim thereto is not disputed b. The parties to be interpleaded must make effective claims

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c.

There must be at least two (2) conflicting claimants with adverse or conflicting interests to a property in custody or possession of the plaintiff; and d. The subject matter must be one and the same. [Lim v. Continental Dev’t Corp., G.R. No. L- 41818 (1976)] Notes: a. Interpleader applies regardless of the nature of the subject matter [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L-23851 (1976), interpreting Sec. 1, Rule 63 of the 1964 ROC, which was virtually unchanged by now Sec. 1, Rule 62] b. An interpleader cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other reliefs [Beltran v. PHHC, G.R. No. L-25138 (1969)]

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]  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.

2. When to File

[Sec. 5, Rule 62]

General rule: Within a reasonable time [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L-23851 (1976)]

OR

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 files: The person against whom the conflicting claims are made and claims no interest in the subject matter [Sec. 1, Rule 62] Jurisdiction: General rules on jurisdiction apply as in ordinary civil actions [see Makati Development Corporation v. Tanjuatco, G.R. No. L-26443 (1969)] 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] 

REMEDIAL LAW

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]  Pre-trial [Sec. 6, Rule 62]  Determination of the claimants’ respective rights and adjudicate their several claims [Sec. 6, Rule 62] 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. thereafter render judgment barring him from any claim in respect to the subject matter [Sec. 5, Rule 62]

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C. 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] Declaratory relief is defined as an action by any person interested in a deed, will, contract or other written instrument, executive order or resolution, to determine any question of construction or validity arising from the instrument, executive order or regulation, or statute, and for a declaration of his rights and duties thereunder [Sec. 1, Rule 63; Jumamil v. Cafe, G.R. No. 144570 (2005)] Note: The enumeration of the subject matter 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)] The only issue that may be raised in such petition is the question of construction or validity of provisions in an instrument or statute [Atlas Consolidated Mining & Development. Corp. v. CA, G.R. No. L-54305 (1990)] 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)] Characteristics The concept of a cause of action does not strictly apply to a declaratory relief petition since it presupposes that there has been no breach or violation of the instruments involved. However, a breach or violation must be impending imminent, or at least threatened [Velarde v. Social Justice Society, G.R. No. 159357 (2004)] Thus, unlike other judgments, a judgment in an action for declaratory relief does not essentially entail any execution process [1 Regalado 789, 2010 Ed.]

REMEDIAL LAW

1. Who May File the Action Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof [Sec. 1, Rule 63] Parties 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)]

2. Requisites of an Action for

Declaratory Relief

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

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f.

Adequate relief is not available through other means or other forms of action or proceeding [Republic v. Roque, G.R. No. 204603 (2013)]

b. the parties shall be allowed to file such pleadings as may be necessary or proper. [Sec. 6, Rule 63]

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)]

Note: 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)]

WHERE TO FILE 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)] 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

3. When Court May Refuse to

Make Judicial Declaration

Except in actions falling under the 2nd paragraph of Sec. 1, Rule 63, 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. [Sec. 5, Rule 63]

5. Proceedings Considered as

Similar Remedies

Action for reformation of an instrument; Action to quiet title or remove clouds therefrom, and c. Action to consolidate ownership under Art. 1607, CC [Sec. 1, Rule 63] a. b.

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 [Malana v. Tappa, G.R. No. 181303 (2009)] However, a distinction must be made between these proceedings and an action for declaratory relief because of Sec. 5, Rule 63. See Part C.3 of this (Special Civil Actions) reviewer above.

a. Reformation of an Instrument

4. Conversion to Ordinary

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 [MultiVentures Capital v. Stalwart Management Services Corp., G.R. No. 157439 (2007)]

If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, a. the action may thereupon be converted into an ordinary action, and

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

Action

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[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 As an action for reformation, plaintiff had 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, 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 such true intention may be expressed. 2. 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] 1.

The principles of general law on reformation of instruments are adopted insofar as they are not 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] 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]

REMEDIAL LAW

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] There shall be no reformation in the following cases: 1. Simple donations inter vivos wherein no condition is imposed 2. Wills 3. When the real agreement is void [Art. 1366, CC] When one of the parties has brought an action to enforce the instrument, he cannot subsequently ask for its reformation [Art. 1367, 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]

b. 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] 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

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operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order [Rosario v. Rosario, G.R. No. L13018 (1960)]

c. Quieting of Title to Property Whenever there is a cloud on title to real property or any interest therein, by reason of 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. 2. 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] 1.

The plaintiff must have legal or equitable title to, or interest in the real property which is the subjectmatter 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)]

REMEDIAL LAW

D. Review of Judgments and Final Orders or Resolutions of the COMELEC and COA Scope Review of judgments and final orders or resolutions of the COMELEC and the COA [Sec. 1, Rule 64] This new rule is based on the provisions of Sec. 7, Art. IX-A, Constitution, which states that unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the SC on certiorari within 30 days from receipt of a copy thereof. Hence, judgments/orders of the Civil Service Commission are now reviewable by CA under Rule 43, eliminating recourse to the SC [R.A. 7902; SC Revised Administrative Circular No. 1-95]

1. Application of Rule 65 under

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] This follows the express provision of Sec. 7, Art. IXA, Constitution, and is different from Rule 65 which provides for 60 days (see Sec. 4, Rule 65). Interruption of the 30-day period a. 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. b. 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]

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Note: The period is 30 days from notice of the decision or ruling (instead of the 60 days that Rule 65 provides), with the intervening period used for the filing of any motion for reconsideration deductible from the originally-granted 30 days (instead of the fresh period of 60 days that Rule 65 provides) [Pates v. COMELEC, G.R. No. 184915 (2009)]

2. Distinction in the

Application of Rule 65 to Judgments of the COMELEC and COA and the Application of Rule 65 to Other Tribunals, Persons and Officers

General rule: Failure to exhaust available remedies file a motion for reconsideration before the issuing forum results in the dismissal of the petition. Exceptions: a. To prevent a miscarriage of justice b. The issue involves the principle of social justice or the protection of labor c. The decision or resolution is a nullity d. Need for relief is extremely urgent and certiorari is the only adequate remedy [ABS-CBN v. COMELEC, G.R. No. 133486 (2000)] Procedure Filing of a verified petition [Sec. 5, Rule 64] with payment of docket and lawful fees and deposit P500.00 for costs [Sec. 4, Rule 64]  Action on the petition

REMEDIAL LAW

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 SC may dismiss the petition on the following grounds: (a) Failure to comply with the form and content requirements in Sec. 5 [Sec. 5, Rule 64] (b) Insufficiency in form and substance (c) Filed manifestly for delay, or (d) Questions raised are too unsubstantial to warrant proceedings [Sec. 6, Rule 64] If SC finds the petition sufficient in form and substance, it shall order respondents to file their comments on the petition within 10 days from notice [Sec. 6, Rule 64]  Filing of comments [Sec. 7, Rule 64]  Submission for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so, unless the Court sets the case for oral argument, or requires the parties to submit memoranda [Sec. 9, Rule 64]

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Rule 65 Directed to any tribunal, board, or officer exercising judicial or quasi-judicial functions [Sec. 1] Filed within 60 days from notice of the judgment [Sec. 4]

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E. Certiorari, Prohibition, Mandamus 1. Definitions and Distinctions Certiorari is a writ a.

b.

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] issued by a superior court to an inferior court of record, or other tribunal or officer, exercising a judicial function, requiring the certification and return to the former of some proceeding then pending, or the record and proceedings in some cause already terminated, in cases where the procedure is not according to the course of the common law [Pahilia-Garrido v. Tortogo, G.R. No. 156358 (2011)]

Certiorari [Sec. 1, Rule 65] Any tribunal, board or officer exercising judicial or quasijudicial functions

REMEDIAL LAW

Prohibition is a writ issued by the proper court and directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasijudicial 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 a. When the 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 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]

Prohibition [Sec. 2, Rule 65] Any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions

Mandamus [Sec. 3, Rule 65] Any tribunal, corporation, board, officer or person a.

a.

Without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and b. There is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law

Praying that judgment be rendered (a) annulling or modifying the proceedings of such tribunal, board or officer, and (b) granting such incidental reliefs as law and justice may require

Praying that judgment be rendered (a) commanding the respondent to desist from further proceedings in the action or matter specified therein, or (b) otherwise granting such incidental reliefs as law and justice may require.

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Unlawfully (1) Neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or (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 Praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, (a) 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.

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Certiorari as a mode of appeal [Rule 45]

a. Certiorari Distinguished from Appeal by Certiorari 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

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

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 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 Filed not later than 60 days from notice of judgment, order, or resolution sought to be assailed. In case a motion for reconsideration or new trial is timely filed, the 60-day period is counted from notice of said denial. 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

appealing party as the petitioner and the adverse party as the respondent, without impleading the lower court or its judge

Review by the SC is discretionary and will be granted only when there are special or important reasons [Rule 45, Sec. 6]

REMEDIAL LAW

Certiorari as a special civil action [Rule 65] judicial or quasi-judicial functions is impleaded as respondent

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. But the SC/CA may require a comment before giving the petition due course.

[1 Regalado 612, 2010 Ed.] Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The antithetic character of appeal and certiorari has been generally recognized and observed save only on those rare instances when appeal is satisfactorily shown to be an inadequate remedy. 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)]

b. Prohibition and Mandamus Distinguished from Injunction Injunction Ordinary civil action Directed only to the party litigants, without in any manner interfering with the court

Does not involve the jurisdiction of the court Main action or provisional remedy

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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 It is based on the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction Main action

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Injunction Ordinary civil action Directed against a litigant Purpose is to either refrain the defendant from performing an act or to perform not necessarily a legal and ministerial duty

CIVIL PROCEDURE

Mandamus Special civil action Directed against a tribunal, corporation, board, or officer

b.

Purpose is for the tribunal, corporation, board, or officer, to perform a ministerial and legal duty

2. Requisites

c.

Certiorari

Respondent is exercising judicial or quasi- judicial 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. 1, Rule 65; Barbers v. COMELEC, G.R. No. 165691 (2005)] a.

Prohibition a. Respondent is exercising judicial or quasi- judicial 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

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 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] a.

Notes on mandamus a. There must be a well-defined, clear legal right or duty [Valmonte v. Belmonte, G.R. No. 74930 (1989)]

REMEDIAL LAW

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)] Respondent must be exercising ministerial duty [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509 (2006)] However, 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 issue 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)] There is no other plain, speedy, and adequate remedy in the ordinary course of law [Sec. 3, Rule 65].

Discretionary v. ministerial act Discretionary act Ministerial act One which an officer or tribunal performs in a The law imposes a given state of facts, in a duty upon a public prescribed manner, in officer and gives obedience to the mandate him the right to of a legal authority, decide how or when without regard to or the the duty shall be exercise of his own performed 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] Independent action An original action for Certiorari, Prohibition, or Mandamus is an independent action, and as such, it: a. does not interrupt the course of the principal action b. does not affect the running of reglementary periods involved in the proceedings c. does not stay the execution of the judgment unless a TRO or a writ of preliminary injunction has been issued [Sec. 7, Rule 65]

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3. When petition for Certiorari,

Prohibition, and Mandamus is proper

Certiorari

Certiorari is a corrective remedy used to correct errors of jurisdiction, not errors of judgment [Republic v. Sandiganbayan (Second Division) and Benedicto, G.R. No. 129406 (2006)] Questions of fact cannot be raised in an original action for certiorari. Only established or 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 injuction [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)]

REMEDIAL LAW

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 commission of such illegality.[Tan v. COMELEC, G.R. No. 73155 (1986)]

Mandamus

A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. [Lamb v. Phipps, G.R. No. L-7806 (1912)] However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of 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]

4. Injunctive Relief General rule a. The petition shall not interrupt the course of the principal case, unless a TRO or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case b. 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.

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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. 07-7-12-SC] c.

Exceptions: a. When a TRO or a writ of preliminary injunction has been is 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. 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)]

5. Exceptions to Filing of

Motion for Reconsideration before Filing Petition

General rule: An MR 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: a. An MR may be dispensed with in some cases b. Where the order is a patent nullity c. 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 d. Where there is urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government e. 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 f. Where the petitioner was deprived of due process and there is extreme urgency for relief g. Where, in a criminal case, relief from an order of arrest is urgent and granting such relief by trial court is improbable; h. Where the proceedings in the lower court are a nullity for lack of due process;

REMEDIAL LAW

Where the proceeding was ex-parte or in which the petitioner had no opportunity to object; j. Where the issue raised is one purely of law or where public interest is involved k. Where the subject matter of the action is perishable [Ombudsman v. Laja, G.R. No. 169241 (2006)] i.

6. Reliefs Petitioner is Entitled

to

Reliefs a. Court may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties [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] Prayers a. Certiorari 1. That the judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer; and 2. Granting such incidental reliefs as law and justice may require [Sec. 1, Rule 65] b. Prohibition 1. That the judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified; or 2. Otherwise granting such incidental reliefs as law and justice may require [Sec. 2, Rule 65, Sec. 2] c. Mandamus 1. 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 2. To pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent [Sec. 3, Rule 65]

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7. Actions/Omissions of

REMEDIAL LAW

Where to file

MTC/RTC in Election Cases

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)]

8. When and Where to File

Supreme Court

RTC

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] Acquisition of jurisdiction a. If action is filed with the RTC: Follow the rules on ordinary civil actions. Jurisdiction is acquired by: 1. Service of summons to respondent or 2. By his voluntary appearance in court b. If action is filed with the SC/CA: Court acquires jurisdiction over respondents by: service of its orders upon respondents indicating its: 1. Initial action on the petition; or 2. By their voluntary submission to such jurisdiction [Sec. 4, Rule 65] PROCEDURE When to file Not later than 60 days from notice of judgment/ order/ resolution If a motion for reconsideration/ new trial is filed, the 60-day period shall be counted from notice of denial of motion [Sec. 4, Rule 65]

Court of Appeals only

Court of Appeals or the Sandiganbayan

Commission Elections

on

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. 07-7-12SC] 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; 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;

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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)] f.

9. Effects of Filing of an

Unmeritorious Petition

The court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. b. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B. c. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary measures on erring lawyers for patently dilatory and unmeritorious petitioner for certiorari. [Sec. 8, Rule 65] a.

REMEDIAL LAW

F. 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)] Subject matter An action for the usurpation of a public office, position or franchise [Sec. 1, Rule 66] An act or omission committed prior to or at the time of appointment or election relating to an officials qualifications to hold office as to render such appointment or election invalid is properly the subject of a quo warranto petition, provided that the requisites for the commencement thereof are present [Republic v. Sereno, G.R. No. 237428 (2018)] 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 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] Note: Quo warranto against corporations now fall under the jurisdiction of the RTC acting as special commercial courts [Sec. 5.2, R.A. 8799]. Quo warranto petitions will only lie against de facto corporations. 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)]

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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, but of something else, which may either be impeachment if the public official concerned is impeachable and the act or omission constitutes an impeachable offense, or disciplinary, administrative or criminal action, if otherwise [Republic v. Sereno, G.R. No. 237428 (2018)]

REMEDIAL LAW

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 (as opposed to associations without authority) 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)]

1. Distinguished from Quo Warranto in the Omnibus Election Code Quo warranto in electoral proceedings [Sec. 253,

Quo warranto under Rule 66

Omnibus Election Code]

Filed by whom a.

Solicitor General or public prosecutor 1. when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in Sec. 1, Rule 66 can be established by proof, must commence such action [Sec. 2, Rule 66]; or 2. at the request and upon the relation of another person [Sec. 3, Rule 66]; or b. Person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another in his own name [Sec. 5, Rule 66]

Any voter

Venue a. Commenced by Solicitor General: 1. RTC Manila, 2. CA, or 3. SC b. Otherwise: 1. RTC with jurisdiction over the territorial area where respondent or any of the respondents resides, 2. CA or 3. SC [Sec. 7, Rule 66]

Jurisdiction a. If against the election of a Member of Congress, regional, provincial or city officer: COMELEC b. If against a municipal or barangay officer: appropriate RTC or MTC, respectively.

Where filed

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Quo warranto in electoral proceedings [Sec. 253,

Quo warranto under Rule 66

Omnibus Election Code]

Period for filing Within one year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose [Sec. 11, Rule 66]

Within 10 days after proclamation of results

Issue is legality of the occupancy of the office by virtue of a legal appointment [Riano 672]

Issue is eligibility of the person elected [Riano 672]

Issue

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 b. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office [Sec. 1, Rule 66]

a. Ineligibility, or b. Disloyalty to the Republic of the Philippines

Effect When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs [Sec. 9, Rule 66] Note: Thus, Rule 66 applies to quo warranto IN GENERAL, while election law governs quo warranto against SPECIFIED elective officials. Who may commence the action a. Solicitor General; b. Public prosecutor c. Individual claiming to be entitled to the office or position usurped or unlawfully held or exercised by another [Sec. 5, Rule 66] Note: By analogy with provisions of Sec. 5, it has been held that a public utility may bring a quo warranto action against another public utility which has usurped the rights of the former granted under franchise [Regalado 821, citing Cui v. Cui, G.R. No. 39773 (1934)]

The occupant who was declared ineligible or disloyal will be unseated but the petitioner may be declared the rightful occupant of the office if the respondent is disqualified and the petitioner received the second number of votes [Maquiling v. COMELEC, G.R. No. 195649 (2013)]

2. When Government May

Commence an Action against Individuals

The Solicitor General or a public prosecutor, a. when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in Sec. 1, Rule 66 can be established by proof, must commence such action [Sec. 2, Rule 66]; or b. with the permission of the court in which the action is to be commenced, at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought [Sec. 3, Rule 66]

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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., GR No. 104226 (1993)]

3. When an Individual May

Commence an Action

a.

b.

c.

If he claims to be entitled to the office or position usurped or unlawfully held or exercised by another, he may bring the action in his own name [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] Where to file a. It may be brought only in the SC, CA, or RTC exercising jurisdiction over the territorial area where respondent or any or the respondents resides.

b.

REMEDIAL LAW

Note: The petition may be brought in the SB in certain cases when in aid of its appellate jurisdiction [Sec. 4, P.D. 1606, as amended by R.A. 10660; Riano 670] When the Solicitor General commences the action, it may be brought in the RTC in the City of Manila, CA, or SC [Sec. 7, Rule 66]

Period to file General rule:An action for quo warranto must be commenced within 1 year after the cause 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. L29053 (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)]

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]

4. Judgment in Quo Warranto

Action

When respondent is found guilty, judgment shall be rendered that a. Such respondent is ousted and altogether excluded therefrom; and b. Petitioner or relator, as the case may be, recover his costs; and Such 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 [Sec. 9, Rule 66]

5. Rights of a Person Adjudged

Entitled to Public Office

a. b.

Execution of the office after taking the oath of office and executing any official bond required by the law Immediately thereafter 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.

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Bring action against the respondent to recover the damages sustained by him by reason of the usurpation

Must be commenced within one year after entry of judgment establishing petitioner’s right to the office in question [Sec. 11, Rule 66]

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G. 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 remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the State [Manapat v. CA, G.R. No. 110478 (2007)] 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)] 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)]

1. Matters to Allege in

Complaint for Expropriation

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. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, Page 196 of 481

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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] Note: Where the right of the plaintiff to expropriate is conferred by law, the complaint does not have to state with certainty the right of expropriation [Manila Railroad Co. v. Mitchel, G.R. No. L-19280 (1923)] Where to file RTC where property is located. 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)]

REMEDIAL LAW

Power Corporation v. Posada, G.R. No. 191945 (2015)] Second Stage: just compensation a. 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)]

The commencement of the complaint for expropriation is necessary only when the owner does not agree to sell his property, or if he is willing to sell but does not agree with the price offered [Riano]

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]

2. Two Stages in Every Action

3. When Plaintiff can

for Expropriation

Expropriation undergoes two (2) phases. 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. 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 b. Ends with an order, if not of dismissal of the action, "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 state, 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

Immediately Enter into Possession of Real Property, in Relation to R.A. 8974

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, and after due notice to defendant and b. Making 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 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 Where to depositary to be held by such bank deposit subject to the orders of the court General rule: In money. Form of deposit

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Exception: In lieu of money, the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of

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the Philippines payable on demand to the authorized government depositary The court shall order the sheriff or other proper officer to forthwith After place the plaintiff in possession of deposit is the property involved and promptly made submit a report thereof to the court with service of copies to the parties. [Sec. 2, Rule 67] Note: The preliminary deposit is only necessary if the plaintiff desires entry on the land upon its institution of the action; otherwise, it could always wait until the

Scope

REMEDIAL LAW

order of expropriation is issued before it enters upon the land [1 Regalado 831, 2010 Ed.] Once the preliminary deposit has been made, the expropriator is entitled to a writ of possession as a matter of right, and the issuance of said writ becomes ministerial on the part of the trial court [Biglang-Awa v. Bacalla, G.R. No. 139927 (2000)] Republic Act No. 10752 (2016) a. An Act Facilitating the Acquisition of Right-ofWay Site or Location for National Government Infrastructure Projects b. Short title: “The Right-of-Way Act” [Sec. 1] c. Repealed R.A. 8974 [Sec. 16]

Sec. 2, Rule 67 Expropriation in general, for both real and personal properties

For writ of possession to issue

Government is required to make a preliminary deposit

Amount of payment or deposit

Equal to the assessed value of real property for purposes of taxation

R.A. 10752 National government infrastructure projects, as defined by Sec. 3 [Sec. 2] 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 stated below [Sec. 6(a)] 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) [Sec. 6(a)] In provinces, cities, municipalities, and other areas where there is no zonal valuation, or where the current zonal valuation has been in force for more than 3 years, the BIR is mandated, within the period of 60 days from the date of filing

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of the expropriation case, to conduct a zonal valuation of the area, based on the land classification done by the city or municipal assessor [Sec. 6(c)] Applicable special laws: a. R.A. 10752 specifically governs expropriation for national government infrastructure projects b. Sec. 19, LGC governs the exercise of the power of eminent domain by LGUs through an enabling ordinance

4. New System of Immediate

Payment of Initial Just Compensation

of 60 days from the date of filing of the expropriation case, to conduct a zonal valuation of the area, based on the land classification done by the city or municipal assessor [Sec. 6(c)]

5. Defenses and Objections No objection to or defense against taking

With objection to or defense against taking

What to file and serve

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 abovementioned, 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] In provinces, cities, municipalities, and other areas where there is no zonal valuation, or where the current zonal valuation has been in force for more than 3 years, the BIR is mandated, within the period

Notice of appearance and a manifestation

Answer

Period to file

Within the time stated in the summons

Contents

a.

a.

Manifestation to the effect that he has no objection or defense b. Specifically designating/identifying the property in which he claims to be interested

Specifically designate or identify the property in which he claims to have an interest, b. State the nature and extent of the interest claimed, and 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 subsequent pleading [Sec. 3, Rule 67] Omnibus motion rule A motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived [Sec. 8, Rule 15]

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A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof [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)]

6. Order of Expropriation

REMEDIAL LAW

[Robern Development Corp. v. Quitain, G.R. No. 135042 (1999)] Note: Multiple appeals are permitted in expropriation. An appeal may be taken from the order authorizing the expropriation and thereafter, another appeal on the judgment on the just compensation. Thus, the reglementary period to appeal shall be 30 days and a record on appeal shall be required for each of the permissible appeals [Regalado 837]

7. Ascertainment of Just

Compensation

a.

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 Declaration that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first [Sec. 3, Rule 67] Remedy of defendant a. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. b. Such appeal, however, shall not prevent the court from determining the just compensation to be paid [Sec. 3, Rule 67] The order of condemnation is final. Hence, it is appealable [Heirs of Alberto Suguitan v. City of Mandaluyong, G.R. No. 135087 (2000)] Effects of the order The plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable [Sec. 4, Rule 67] The order forecloses any further objections to the right to expropriate and to the public purpose of the expropriation, leaving the matter of just compensation as the only remaining substantial issue

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. b. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. c. Copies of the order shall be served on the parties. d. Objections to the appointment of any of the commissioners shall be filed with the court within 10 days from service, and shall be resolved within 30 days after all the commissioners shall have received copies of the objections. [Sec. 5, Rule 67] Just Compensation Just compensation is the full and fair equivalent of the property taken from its owner by the expropriator. Just compensation means not only (1) the correct determination of the amount to be paid but also (2) the payment of the land within a reasonable time from its taking [Land Bank v. Obias, G.R. No. 184406 (2012)] Market Value It is the sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore [BPI v. CA, G.R. No. 160890 (2004)] 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

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b. If taking coincides with or is subsequent to the commencement of proceedings: value is fixed as of DATE OF FILING of the complaint. [Republic v. Philippine National Bank, G.R. No. L-14158 (1961)]

8. Appointment of

Commissioners; Commissioner’s report; Court Action upon Commissioner’s report

Qualifications a. Competent; and b. Disinterested [Sec. 5, Rule 67] Proceedings by commissioners a. Oath: Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. b. Introduction of evidence: Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them [Sec. 6, Rule 67] Duties of commissioners a. Unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. 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] Consequential benefits are those that proximately result from the remaining portion of the land [1 Regalado 843, 2010 Ed.]

REMEDIAL LAW

Report by commissioners a. 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 b. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within 60 days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. [Sec. 7, Rule 67] Action upon commissioner’s report a. Upon the expiration of the period of 10 days referred to in Sec. 7, or b. Even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may 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; and 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 2. Defendant just compensation for the property so taken [Sec. 8, Rule 67]

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The appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases [Riano] The trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or for no reason at all. The absence of such trial or hearing constitutes a violation of the right to due process [NPC v. de la Cruz, G.R. No. 156093 (2007)]

9. Rights of Plaintiff upon

Judgment and Payment

REMEDIAL LAW

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] When title to property vests a. If personal property, upon payment of just compensation [Sec. 10, Rule 67] b. If 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]

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, the plaintiff shall have the right to 1. enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or 2. retain it should he have taken immediate possession thereof under the provisions of Sec. 2, Rule 67 [Sec. 10, Rule 67] If the defendant and his counsel a. absent themselves from the court, or b. 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)]

10. Effect of Entry of Judgment Contents of the judgment Page 202 of 481

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subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action [Sec. 1, Rule 68]

H. Foreclosure of Real Estate Mortgage 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 nonpayment 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.] Foreclosure may be: 1. Judicial: governed by Rule 68 2. Extrajudicial: proper only when so provided in contracts in accordance with Act 3135; governed by A.M. No. 99-10-05 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 Court of First Instance 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)] Contents of the complaint 1. The date and due execution of the mortgage 2. Its assignments, if any 3. The names and residences of the mortgagor and the mortgagee 4. A description of the mortgaged property 5. A statement of the date of the note or other documentary evidence of the obligation secured by the mortgage 6. The amount claimed to be unpaid thereon; and 7. The names and residences of all persons having or claiming an interest in the property

Defendants in a judicial foreclosure: 1. Persons obliged to pay the mortgage debt 2. Persons who own, occupy, or control the mortgaged premises or any part thereof [Soriano v. Enriquez, GR No. 7708 (1913)] 3. Transferee or grantee of the property [De Villa v. Fabricante, G.R. No. L-13063 (1959)] 4. The second mortgagee or junior encumbrancer, or any person claiming a right or interest in the property subordinate to the mortgage sought to be foreclosed; but if the action is by the junior encumbrancer, the first mortgagee may also be joined as defendant [De la Riva v. Reynoso, G.R. No. 41701 (1935)] [1 Regalado 850-851]

1. Judgment on Foreclosure for

Payment or Sale

If upon the trial in such action the court shall a. Find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and b. Render judgment for the sum so found due and order that 1. The same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment, and 2. In default of such payment the property shall be sold at public auction to satisfy the judgment. [Sec. 2, Rule 68] The period of payment by the mortgagor is a mandatory directive and constitutes a substantive right of the mortgagor. It cannot be omitted in judicial foreclosure nor can the parties by agreement change the procedure outlined [1 Regalado 855, 2010 Ed.] Multiple appeals a. Multiple appeals are allowed under Rule 68. b. Judgment of foreclosure is appealable. c. Order confirming foreclosure sale is a final disposition with respect to the issue of validity and regularity of the sale.

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Deficiency judgment is a disposition on the merits of the correctness of such award [1 Regalado 854, 2010 Ed.]

2. Sale of Mortgaged Property;

Effect

When the defendant, after being directed to do so as provided in Sec. 2, Rule 68, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution [Sec. 3, Rule 68]

REMEDIAL LAW

redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure Exception: Third party is actually holding the same adversely to the judgment obligor [Sec. 3, Rule 67]

3. Disposition of Proceeds of

Sale

The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and b. When there shall be any balance or residue, after paying off the mortgage debt due, 1. The same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or 2. If there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it [Sec. 4, Rule 68] a.

A motion for such order of sale is non-litigable and may be made ex parte [Gov’t of the Phil. Islands v. De las Cajigas, G.R. No. 33913 (1931)] Limitation: Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof [Sec. 3, Rule 68] If the order of foreclosure sale does not push through, there is a need for re-publication and reposting of the notice thereof [Metrobank v. Nikko Resources Int’l Corp., G.R. No. 178479 (2009)] Order of confirmation When confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law [Sec. 3, Rule 68] Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption. It retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee [Lonzame v. Amores, G.R. No. L-53620 (1985)] The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v. Botones, G.R. No. L-3619 (1951)] (e.g. by proof of irregularities therein, gross inadequacy of the price, lack of notice vitiates the confirmation of the sale) [1 Regalado 857, 2010 Ed.] Writ of possession General rule: Upon the finality of the order of confirmation or upon the expiration of the period of

4. Deficiency Judgment If upon the sale of any real property as provided in Sec. 5 there be a balance due to the plaintiff after applying the proceeds of the sale, a. The court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; b. Otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment [Sec. 6, Rule 68] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists [Governor of the Philippine Islands v. Torralba Vda. de Santos, G.R. No. 41573 (1935)]

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Note: A deficiency judgment is an action in personam while a judgment of foreclosure is an action quasi in rem [Ocampo v. Domalanta, G.R. No. L-21011 (1967)]

Judicial foreclosure

If the debtor dies, the deficiency may be filed as a claim against his estate [Sec. 7, Rule 86] Governed by Rule 68

a. Instances when Court Cannot Render Deficiency Judgment 1.

2.

3.

Under the Recto Law [Art. 1484, par. 3, CC] a. When the mortgagor is a non-resident and is not found in the Philippines. (Rationale: The proceeding would be procedurally infeasible as a deficiency judgment is in personam, and under this situation, jurisdiction over the obligor cannot be had [Riano]) b. When mortgagor dies, mortgagee may file his claim with the probate court [Sec. 7, Rule 86] c. If mortgagor is a third party mortgagor but not solidarily liable with debtor [Phil. Trust Co. v. Tan Siua, G.R. No. 29736 (1929)] In case of a mortgage debt due from the estate of a deceased mortgagor and the mortgage creditor availed of the third remedy which is to rely upon his mortgage alone and foreclosing the same within the statute of limitations [Sec. 7, Rule 86] When the deficiency arises under an extrajudicial foreclosure. The mortgagee can recover by action (not by motion) any deficiency in the mortgage account which was not realized in the foreclosure sale [PNB v. CA, G.R. No. 121739 (1999)]

When there is a surplus instead of deficiency It is the duty of the mortgagee to return to the mortgagor any surplus in the selling price during the foreclosure sale [Sulit v. CA, G.R. No. 119247 (1997)]

5. Judicial Foreclosure v.

Extrajudicial Foreclosure

Judicial foreclosure Requires court intervention There is only an equity of redemption [Huerta Alba Resort, Inc. v. CA, G.R. No. 128567 (2000)]

Extrajudicial foreclosure No court intervention necessary Right of redemption exists; mortgagor has a right to redeem the property within one year from registration

There could be a deficiency judgment [Sec. 6, Rule 68] Deficiency judgment shall be rendered, on motion [1 Regalado 859, 2010 Ed.]

Exception: Mortgagor may exercise right of redemption within one year after the sale, when the loan or credit accommodation is granted by a bank [Sec. 47, R.A. 8791]

REMEDIAL LAW

Extrajudicial foreclosure of the deed of sale [Huerta Alba Resort, Inc. v. CA, G.R. No. 128567 (2000), citing Act 3135] Governed by Act 3135 No deficiency judgment because there is no judicial proceeding in the foreclosure of the mortgage itself [1 Regalado 859, 2010 Ed.] Recovery of deficiency is through an independent action [1 Regalado 859, 2010 Ed.] Exception: In case of extrajudicial foreclosure, juridical persons shall have the right to redeem until, but not after, the registration of the certificate of foreclosure sale with the Register of Deeds which in no case shall be more than 3 months after foreclosure, whichever is earlier [Sec. 47, R.A. 8791]

6. Equity of Redemption v.

Right of Redemption

Equity of redemption is the 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 [Sps. Sibug v. Sps. Suba, G.R. No. 137792 (2003)] Equity of redemption Right of defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the

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Right of redemption Right of the debtor, his successor in interest, or any judicial creditor of said debtor or any person having a lien on the property

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Equity of redemption secured debt within the 90 to 120-day period after entry of judgment or even after the foreclosure sale but prior to its confirmation Period is 90-120 days after entry of judgment or even after foreclosure sale but prior to confirmation Governed by Rule 68

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Right of redemption subsequent to the mortgage.

Period is 1 year from date of registration of certificate of sale Governed by Sec. 2931, Rule 39

Note: What Rule 68, Secs. 2-3 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)]

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I. Partition 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 agreement and suitable instruments of conveyance without recourse to an action [Sec. 12, Rule 69] 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 coowner 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)] When partition cannot be done 1. When there is a stipulation against it, but not exceeding 10 years; [Art. 494, CC] 2. When partition is prohibited by the donor or testator for a period not exceeding 20 years; [Arts. 494, 1083, CC] 3. When partition is prohibited by law (e.g. ACP, party wall); [Art. 494, CC] 4. When the property is not subject to a physical division and to do so would render it unserviceable for the use for which is it intended; [Art. 495, CC] or

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When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled [Art. 1084, CC]

1. 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 a. The primary issue to be determined in an action for partition boils down to whether or not the plaintiff has a right to partition, an issue incapable of pecuniary estimation. Thus, from this perspective, it may be argued that the action would be cognizable by the RTC. b. However, an action for partition of real property also involves “interest in real property.” Sec. 19(2) of B.P. 129, as amended by R.A. 7691, requires that in all civil actions involving the title to, or possession of, real property, or any interest therein, the jurisdiction should be determined by inquiring into the assessed value of the real property. Under this provision, an action for partition of real property may be filed in the MTC depending on the assessed value of the property. c. Perhaps guidance may be obtained from Heirs of Concha, Sr. v. Lumocso [G.R. No. 158121 (2007): 1. Under the old law, there was no substantial effect on jurisdiction whether a case is one incapable of pecuniary estimation. 2. The distinction between the two classes became crucial with the amendment introduced by R.A. 7691 in 1994 which expanded the exclusive original jurisdiction of the first level courts [2 Riano 417, 2012 Bantam Ed.]

2. Matters to Allege in the

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Joining 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.

3. 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 coowners are made parties in the case [Lacbayan v. Samoy, G.R. No. 165427 (2011)] The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable [Miranda v. CA, G.R. No. L33007 (1976)] 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)] A final order decreeing partition and accounting may be appealed by any party aggrieved thereby [Sec. 2, Rule 69] 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)]

Complaint for Partition

Contents a. The nature and extent of his title and b. Adequate description of the real estate of which partition is demanded Page 207 of 481

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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] b.

4. Order of Partition and

Partition by Agreement

a.

b.

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. Partition by agreement: Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated.

5. Partition by Commissioners;

Appointment of Commissioners, Commissioner’s Report; Court Action upon Commissioner’s Report

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]

When proper If the parties are unable to agree upon the partition [Sec. 3, Rule 69] Procedure The court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct [Sec. 3, Rule 69] Oath of commissioners Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case [Sec. 4, Rule 69] Duties of commissioners a. View and examine the real estate, after due notice to the parties to attend at such view and examination, and

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 report, the clerk of court 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. c. 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 referred to in Sec. 6, Rule 69, 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,

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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; and 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] 1.

6. Judgment and Its Effects Contents of judgment Effects of judgment If actual partition is properly made Judgment shall state definitely, by metes and Judgment shall vest in bounds and adequate each party to the action description, the in severalty the portion particular portion of of the real estate the real estate assigned assigned to him to each party If the whole property is assigned to one of the parties after payment Judgment shall vest in Judgment shall state the party making the the fact of such payment the whole of payment and of the the real estate free from assignment of the real any interest on the part estate to the party of the other parties to making the payment the action If the property is sold and the sale confirmed by the court Judgment shall state Judgment shall vest the the name of the real estate in the purchaser or purchaser or purchasers and a purchasers making the definite description of payment or payments, the parcels of real free from the claims of estate sold to each any of the parties to the purchaser action [Sec. 11, Rule 69]

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7. 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]

8. Prescription of action The right of action to demand partition does not prescribe [De Castro v. Echarri, G.R. No. 5609 (1911)], except 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)] in which case, acquisitive prescription may set in. If a co-owner repudiates the co-ownership and makes known such repudiation to the other co- owners, then partition is no longer a proper remedy of the aggrieved co-owner. He must file an accion reivindicatoria, which is prescriptible [Roque v. IAC, G.R. No. 75886 (1988)]

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]

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J. 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. Francisco Realty and Development Corp. v. CA, G.R. No. 125055 (1988)]

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Forcible entry (detentacion) 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 date of actual entry on land [1 Regalado 873, 2010 Ed.]

Unlawful detainer (desahucio) 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. L-22984 (1968)]] or last letter of demand [DBP v. Canonoy, G.R. No. L-29422, (1970)]

Accion interdictal comprises two distinct causes of action: 1. Forcible entry (detentacion), where one is deprived of physical possession of the real property by means of force, intimidation, strategy, threats or stealth; 2. Unlawful detainer (desahuico), where one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied [Sps. Valdez v. CA, G.R. No. 132424 (2006)]

In ejectment cases, possession means nothing more than actual physical possession, not legal possession in the sense contemplated in civil law [Antazo v. Doblada, G.R. No. 178908 (2010)]

1. Definitions and Distinctions

2. Distinguished from Accion

Forcible entry (detentacion) Possession of land by defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat, or stealth (FISTS) [Dikit v. Ycasiano, G.R. No. L3621 (1951)] No previous demand for 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

Unlawful detainer (desahucio) Possession is inceptively 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. L3621 (1951)] Demand is jurisdictional [Sec. 2, Rule 70; Medel v. Militante, G.R. No. 16096 (1921)].

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)]

Publiciana and Accion Reivindicatoria

Three (3) kinds of action for recovery of possession

Accion interdictal

Accion publiciana

Summary action for recovery of physical possession where the dispossession has not lasted for more than one year [1 Regalado 871872, 2010 Ed.]

Plenary action for recovery of real right of possession when dispossession has lasted for more than one year [1 Regalado 872, 2010 Ed.]

Plaintiff need not have been in prior physical Page 210 of 481

Accion reivindicatoria

An action for recovery of possession based on ownership [1 Regalado 872, 2010 Ed.]

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Accion interdictal

MTC has jurisdiction [Sec. 33(2), B.P. 129, as amended]

Accion publiciana

Accion reivindicatoria

RTC has jurisdiction if value of the property exceeds P20,000 outside Metro Manila or P50,000 within Metro Manila. MTC has jurisdiction if value of property does not exceed the above amounts [Sec. 19 and 33, B.P. 129, as amended]

3. How to Determine

Jurisdiction in Accion Publiciana, Accion Reivindicatoria and Accion Interdictal

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, as amended by R.A. 7691]

4. Who May Institute the

Action and When; Against Whom the Action May be Maintained

a. b.

In forcible entry: A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth In unlawful detainer

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Lessor, vendor, vendee, or other person against whom any land or building is unlawfully withheld; or 2. His legal representatives or assigns [Sec. 1, Rule 70] 1.

Period of filing Within 1 year after the unlawful deprivation or withholding of possession [Sec. 1, Rule 70] Reckoning points: a. For forcible entry: it is counted from date of actual entry on the land [1 Regalado 873, 2010 Ed.]; 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 1. Last demand [Sarona v. Villegas, G.R. No. L22984 (1968)], or 2. Last letter of demand [Racaza v. Susana Realty, Inc., G.R. No. L-20330 (1966); Calibayan v. Pascual, G.R. No. L-22645 (1967); DBP v. Canonoy, G.R. No. L-29422, (1970)] 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] Notes: a. Action may be maintained only against one in possession at the commencement of the action. b. Tenant with right of [de facto] possession may bring action against another tenant. c. Vendor may bring action for ejectment against vendee upon failure to pay installments. d. Action may lie against the very owner of the property. e. Action may be maintained against government officials or agents acting in behalf of the government, even if government is not made a party to the action [1 Regalado 874, 2010 Ed.]

5. 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]

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Note: Pleadings must be VERIFIED [Sec. 4, Rule 70] What must be alleged in the complaints Forcible entry Unlawful detainer a. Initially, possession of property by the defendant was by contract with or by tolerance of the a. Plaintiff had prior plaintiff physical possession b. Eventually, such of the property possession became b. The defendant illegal upon notice deprived him of by plaintiff to such possession by defendant of the means of FISTS termination of the [Abad v. Farrales, latter's right of G.R. No. 178635 possession (2011), citing Sec. c. Thereafter, the 1, Rule 70] defendant c. That the complaint remained in was filed within 1 possession of the year from property and dispossession [Sec. deprived the 1, Rule 70; 1 plaintiff of the Regalado 533, 2010 enjoyment thereof, Ed.] and d. Within one year Note: First two from the last requirements are demand on jurisdictional [Abad v. defendant to Farrales, G.R. No. vacate the 178635 (2011)] property, the plaintiff instituted the complaint for ejectment [French v. CA, G.R. No. 220057 (2017)] 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)]

6. 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

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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. b. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. c. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. d. The answer to counterclaims or cross-claims 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. b. 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. Not later than 30 days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of Rule 70 b. The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. c. 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. d. All cross-claims shall be dismissed. e. If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. f. This procedure shall not apply where one of two or more defendants sued under a common cause

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of action who had pleaded a common defense shall appear at the preliminary conference. g. 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]

[Sec. 2, Rule 70] c. Oral [Jakihaca v. Aquino, G.R. No. 83982 (1990)]

Submission of affidavits and position papers Within 10 days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them [Sec. 10, 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)] (Since it is not based on the failure to pay or comply with the conditions.)

Judgment a. Within 30 days after receipt of the affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. b. However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within 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. c. The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. [Sec. 11, Rule 70]

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)

7. When Demand is Necessary Unless otherwise stipulated, such action by the lessor shall be commenced only after demand [Sec. 2, Rule 70] 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

Period to comply with demand After a. 15 days in the case of lands, or b. 5 days in the case of buildings [Sec. 2, Rule 70]

A demand to pay or vacate does not give rise to a cause of action for unlawful detainer [Peñas v. CA, G.R. No. 112734 (1994)] 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)]

8. Preliminary Injunction and

Preliminary Mandatory Injunction

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] There is no distinction as to the type of ejectment case involved. (1 Regalado 891, 2010 Ed.) While a preventive injunction is governed by Rule 58, mandatory injunction is governed by the rules in Rule 70. (1 Regalado 891, 2010 Ed.)

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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]

b.

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]

c.

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.)

d.

9. Resolving the Defense of

Ownership

The MTC shall exercise exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, 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. Thus, as earlier stated, Sec. 33(2), B.P. 129, quoted above applies only where the inferior

e.

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court believes and the preponderance of evidence shows that a resolution of the issue of possession is dependent upon the resolution of the question of ownership. It must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily seeks is the restoration of possession. Consequently, where the allegations of the complaint as well as the reliefs prayed for clearly establish a case for the recovery of ownership, and not merely one for the recovery of possession de facto, or where the averments plead the claim of material possession as a mere elemental attribute of such claim for ownership, or where the issue of ownership is the principal question to be resolved, the action is not one for forcible entry but one for title to real property. 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. 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. Where the question of who has prior possession hinges on the question of 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

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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. Moreover, now-Sec. 18, Rule 70 expressly provides that the judgment rendered in an action for forcible entry or unlawful detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building. [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)]

10. How to Stay Immediate

Execution of Judgment

[Sec. 19, Rule 70]

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 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 determined by the judgment of the lower court on or before the 10th day of each succeeding month or period. [Sec. 19, Rule 70] All these requisites must concur. The deposit is a mandatory requirement; hence, if it is not complied with, execution will issue as a matter of right [Antonio v. Geronimo, G.R. No. 124779 (2005)]

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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] Prohibited pleadings and motions 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]

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K. Contempt 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)] 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)] Contempt proceedings have a dual function: 1. Vindication of public interest by the punishment of contemptuous conduct; and 2. Coercion to compel the contemnor to do what the law requires him to uphold the power of the court, and also to secure the rights of the parties to a suit awarded by the court [Regalado v. Go, G.R. No. 167988 (2007)]

1. 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 disobedience of its orders Intent is necessary State is the real prosecutor

Civil contempt Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order; for the preservation of the rights of private persons Intent is not necessary Instituted by the aggrieved party, or his successor, or someone

Proof required is proof beyond reasonable doubt If accused is acquitted, there can be no appeal

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who has a pecuniary interest in the right to be protected Proof required is more than mere preponderance of evidence If judgment is for respondent, there can 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 Committed in the presence of or so near a court Summary in nature

Indirect contempt Not committed within the presence of the court 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: Fine not exceeding PHP 5,000 and/or imprisonment not exceeding 1 month or both

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 MTC: Fine not exceeding PHP 200 and or imprisonment not exceeding 1 day or both Remedy is certiorari or Remedy is appeal prohibition Otherwise known as Otherwise known as Contempt in Facie Constructive Contempt Curiae [1 Regalado 909, 2010 Ed.]

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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)]

2. 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] 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. 05-3-4-SC (2005)] Procedure Summarily adjudged in contempt by such court [Sec. 1, Rule 71] INDIRECT CONTEMPT See Acts deemed punishable as indirect contempt below.

3. Remedy against Direct

Contempt; Penalty

a.

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himself of the remedies of certiorari or prohibition. b. 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

If RTC or a court of equivalent or higher rank

If lower court

Penalty Fine not exceeding PHP 2,000 or imprisonment not exceeding 10 days or both Fine not exceeding PHP 200 or imprisonment not exceeding 1 day or both

[Sec. 1, Rule 71]

4. Remedy against Indirect

Contempt; Penalty

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. b. But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court 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.

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. L-45430 (1982)] 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)]

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Penalties Offense

If committed against RTC, or a court of equivalent or higher rank If committed against lower court

If the contempt consists in the violation of a writ of injunction, TRO, or status quo order

If committed against a person or entity exercising quasi- judicial functions

CIVIL PROCEDURE

REMEDIAL LAW

INDIRECT CONTEMPT Penalty Fine not exceeding PHP 30,000 or imprisonment not exceeding 6 months, or both [Sec. 7, Rule 71] Fine not exceeding PHP 500, or imprisonment not exceeding 1 month, or both [Sec. 7, Rule 71] Offender may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved [Sec. 7, Rule 71] If there is nothing more to return, offender is personally liable for the restitution of the money equivalent to the lost thing [Rosario Textile Mills v. CA, G.R. No. 137326 (2003)] Penalty shall depend upon the provisions of the law which authorizes penalty for contempt against such persons or entities [Sec. 12, Rule 71]

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 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]

5. How Contempt Proceedings

6. Acts Deemed Punishable as

DIRECT CONTEMPT

a.

Indirect Contempt

are Commenced

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)]

b.

Misbehavior of an officer of a court in the performance of his official duties or in his official transactions Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, 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

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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 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 non-forum 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]

7. 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)]

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8. Contempt against Quasi-

Judicial Bodies

a.

Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasijudicial 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. b. The RTC of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. [Sec. 12, Rule 71]. It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (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 quasijudicial 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]

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 non-payment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment [1 Regalado 920, 2010 Ed.]

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SPECIAL PROCEEDINGS Remedial Law

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VI. 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. Nowhere in the Rules of Court (ROC) does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special 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 v. special proceedings An action is a formal demand of one’s right in a court of justice in the manner prescribed by the court of 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)] Rule 39 applies only to ordinary civil actions, not to other or extraordinary proceedings not expressly governed by the Rules of Civil Procedure but by some other specific law or legal modality [Republic v. Nillas, G.R. No. 159595 (2007)]

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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. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action. 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]

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] 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. Jurisdiction Exclusive original jurisdiction over all matters of probate, both testate and intestate, shall lie with MTC if gross value of the estate Outside does not exceed P300,000 Metro Manila If it exceeds such value, then RTC MTC if gross value of the estate In Metro does not exceed P400,000 Manila Otherwise, RTC

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[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. Since foreign courts are not contemplated in Sec. 1, in no way then can it be validly maintained that the District Court of Hawaii has encroached upon the jurisdiction of the probate court by the issuance of the Reference Order [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 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. L21938 (1970)]

2. Venue Inhabitant of the Philippines at the time of death (citizen or alien)

Court of the province where decedent resided at time of death

Inhabitant of a foreign country at the time of death [Sec. 1, Rule 73]

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Court of any province where decedent had estate

Residence In the application of venue statutes and rules, residence rather than domicile is the significant factor. The word “resides” means personal, 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 of

Probate Court

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)] b. With consent of all the parties, without prejudice to the rights of third persons [Trinidad v. CA, G.R. No. 75579 (1991)]

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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)] Not the court where petition is first filed but court which first takes cognizance 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)]

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4. Powers and Duties of a

Probate Court

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)] There seems, however, to be a general tendency, in the absence of express and specific restrictions to the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same [In Re Baldomero Cosme, G.R. No. 43351 (1937)] 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]

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 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)]

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B. Summary Settlement of Estates 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] 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 of

Estates

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] Affidavit of self-adjudication 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

REMEDIAL LAW

trust, or fails to furnish the bond required by the Rules, then the decedent’s estate shall be judicially 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)] 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)] 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 that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property, must appear in a public instrument, is only for convenience, non-compliance 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). Procedure Division of estate in a public instrument or affidavit of adjudication.  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).

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 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. L28040 (1972)]

2. Two-Year Prescriptive

Period

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] 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] 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. 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)]

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3. Summary Settlement of

Estates of Small Value

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 a 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 

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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  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 COMPARISON Extrajudicial settlement Court intervention not required Decedent left no will (allowed only in intestate succession) Decedent left no debts Heirs are all of age or minors are represented Instituted only at the instance and by agreement of all heirs Value of the estate is immaterial Bond filed with the Register of Deeds in an amount equal to the value of the personal property of the estate

Summary settlement Summary judicial adjudication needed Decedent may or may not have left a will (died intestate/testate) Decedent may have left debts No such requirement May be instituted by any interested party even by a creditor without consent of the heirs Gross value of the estate must not exceed P10,000 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

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proceeding with the intestate proceedings [Intestate Estate of Sebial v. Sebial, G.R. No. L-23419 (1975)]

4. 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 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 1. settle the amount of such debts or lawful participation, and 2. 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)

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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)]

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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 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. This is proper to avoid needless delay in the resolution of cases [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 Page 227 of 481

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C. Production and Probate of Will 1. Nature of Probate

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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] Penalty for neglect without excuse satisfactory to the court shall be a fine not exceeding P2,000 [Sec. 4, Rule 75]

Proceedings

a. In rem proceedings 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. Right to ask for probate does not prescribe [Guevara v. Guevara, G.R. No. L-5405 (1956)] d. Doctrine of estoppel does not apply [Fernandez v. Dimagiba, G.R. No. L- 23638 (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)]

Person retaining will may be committed to prison 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)]

Duty of custodian, executor Within 20 days after he knows for 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] 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). The petition for mandamus with damages may therefore be dismissed for lack of cause of action [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 manner, and signify acceptance/refusal of the trust a. within 20 days after he knows of the death of the testator, or Page 228 of 481

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D. Allowance or Disallowance of Will

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1. Who May Petition For

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 Due execution of the will 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] 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. It is an established rule that a testament may not be disallowed just because the attesting witness declare against its due execution; neither does it have to be necessarily allowed just because all the attesting witnesses declare in favor of its legalization; 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)]

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) Rationale: Easier for courts to determine the mental condition of the testator. Fraud, intimidation, and undue influence are minimized. If a will does not comply with requirements prescribed by law, it may be corrected at once [3 Tolentino 149, 1992 Ed.] 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 claim against the estate like a creditor [Sumilang v. Ramagosa, G.R. No. L-23135 (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. Petitioners, therefore, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. The respondent

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had no legal obligation to mention the petitioners in the petition for probate, or to personally notify them of the same [Alaban v. CA, G.R. No. 156021 (2005)] 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] Contents of petition for allowance of will 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 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

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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] 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)]

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 Page 230 of 481

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

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3.

SPECIAL PROCEEDINGS

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] b. 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] 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

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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 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 pescribed 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 decendents [Spouses Ajero v. CA, G.R. No. 106720 (1994)]

3. 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)] Order allowing or disallowing a will may be the subject of an appeal [Sec. 1, Rule 109]

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E. 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]

1. 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)]

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)]

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. The rules do not require proof that the foreign will has already been allowed and probated in the country of its execution [Palaganas v. Palaganas, G.R. No. 169144 (2011)]

2. Effect of Reprobate a.

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Will shall have the same effect as if originally proved and allowed in Philippine court [Sec. 3, Rule 77]

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F. Letters Testamentary and of Administration 1. When and to Whom Letters

of Administration are Granted

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 manner The testator may provide that he may serve without a bond but the court shall direct him to post a bond conditioned only to pay debts. Compensation provided in the will controls, unless renounced.

Administrator Appointed when a. Testator did not appoint an executor b. The appointment was refused c. The executor is incompetent to serve d. The will was disallowed e. No will (intestate succession)

Any competent person may serve as an executor or administrator.

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 [Republic v. Marcos II, G.R. Nos. 130371 and 130855 (2009)]

No such duty

Required to file bond unless exempted by law

First part of Sec. 7, Rule 85 applies

If no provision for compensation, Sec. 7 of Rule 85 applies.

Executor of an executor shall not, as such, administer estate of first testator [Sec. 2, Rule 78]

Who may administer the estate of a deceased person? a. Executor b. Administrator Executor

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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)] Other grounds in jurisprudence a. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate [Lim v. Diaz-Millarez, G.R. No. L-17633 (1966)]

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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. Executor or executors named are incompetent, refuse the trust, or fail to give bond, or c. Person dies intestate [Sec. 6, Rule 78]

2. Order of Preference

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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)] 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)] The mere demonstration of interest in the estate to be settled does not ipso facto entitle an interested person to co-administration thereof. Neither does squabbling among the heirs nor adverse interests necessitate the discounting of the order of preference set forth in Section 6, Rule 78. Indeed, 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]

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. L26306 (1988)]

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” [3-A Herrera 68, 1996 Ed.] 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

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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)]

3. Opposition to Issuance of

Letters Testamentary; Simultaneous Filing of Petition for Administration

Who may oppose Any person interested in a will [Sec. 1, Rule 79] 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)] Respondent’s photograph with his mother near the coffin of the decedent cannot and will not constitute proof of filiation. Indeed, respondent is not an interested person within the meaning of Section 2, Rule 79 entitled to the issuance of letters of administration [Solinap v. Locsin, Jr., G.R. No. 146737 (2001)] 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. L-27650 (1927)] b. Names, ages and residences of heirs, and names and residences of creditors c. Probable value and character of the estate, and

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d. Name of person for whom letters is prayed [Sec. 2, Rule 79; Palaganas v. Palaganas, G.R. No. 169144 (2011)] 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)] Defect in petition would not render void 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] Under Sec. 3, Rule 79, the probate court must cause notice through publication of the petition after it receives the same. The purpose of this notice is to bring all the interested persons within the court’s jurisdiction so that judgment therein becomes binding on all the world. 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 issue to himself, or to any competent person/s named in it [Sec. 4, Rule 79] Order appointing regular administrator is appealable [Sec. 1, Rule 109] When letters of administration are issued If proven at a hearing that 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]

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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 is liability on the bond enforced? By motion or in a separate action [Festin 56, 2011 Ed.] Conditions on the bond a. Make a 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 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 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 executor shall serve without bond, or with only his individual bond,

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the court may still allow him to file a bond conditioned only to pay debts of testator. But 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] SPECIAL ADMINISTRATOR 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)] 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)] 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 administrator is certiorari under Rule 65 [Tan v. Gedorio, G.R. No. 166520 (2008)] Condition 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

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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)] c.

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 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

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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 [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,

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whose determination in this respect shall be final [Sec. 4, Rule 85]

care, management, and settlement of the estate [Ocampo v. Ocampo, G.R. No. 187879 (2010)]

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]

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)]

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 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 on death anniversary of deceased because no connection with care, management and settlement of estate 2. Expenses for stenographic notes and unexplained representation expenses 3. 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)] 4. Expenses incurred by an executor or administrator to produce a bond [Sison v. Teodoro, G.R. No. L-9271 (1957)] 5. The administration bond should not be considered as part of the necessary expenses, not being included among the acts constituting the

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 right and duty to support subsist even beyond the age of majority. Be that as it may, grandchildren are not entitled to provisional support from the decedent’s 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)] In the same way that certain rights still attach by virtue of the blood relation, so too should certain obligations which include the exercise of parental authority, in the event of the untimely passing of the minor offspring’s adoptive parent. The death of an adoptive parent at the time when the child was still a minor resulted in the restoration of the natural parent’s authority over the adopted child. Consequently, since the parent by adoption already died, then the adopted child’s death benefits shall

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accrue solely to his sole remaining beneficiary, his natural parent [Bartolome v. Social Security System, G.R. No. 192531 (2014)] Executor or administrator to make inventory and render account 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 the inventory, regardless of their being in the possession of another person or entity [Aranas v. Mercado, G.R. No. 156407 (2014)] 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]

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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]

5. Appointment of Special

Administrator

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]

Accounting mandatory Within 1 year from time of receiving letters testamentary or of administration unless court otherwise directs [Sec. 8, Rule 85]

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)]

He shall render such further accounts as court may require until the estate is wholly settled [Sec. 8, Rule 85]

Appointment of special administrator lies entirely in the sound discretion of the court [De Gala v. Gonzales, G.R. No. L-30289 (1929)]

Sec. 8, Rule 85 requires the administrator to render an account of his administration within one year from receipt of the letters testamentary or of administration [Hilado v. CA, G.R. No. 164108 (2009)]

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)]

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 Page 239 of 481

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Regular administrator Appointed by the court in the following instances a. Testator did not appoint an executor 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

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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 Cannot pay debts of the estate unless ordered by the court Order of Appointment is interlocutory and is not appealable

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 deceased in his hands. b. The executor/administrator may prosecute to final judgment suits commenced by such special administrator. [Sec. 3, Rule 80] Appointment of special administrator is interlocutory and is not appealable [Sec. 1(e), Rule 109]

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6. Revocation, Death,

Resignation and Removal of Executors and Administrators

Revocation of administration When the decedent’s will is allowed and proved after letters of administration have been granted as if he had died intestate, the administration is deemed revoked [Sec. 1, Rule 82] Duty of administrator upon revocation of letters a. Surrender letters to court b. Render his account within such time as court directs [Sec. 1, Rule 82] 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 act or omission on the part of the administrator not conformable to or in 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)]

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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]

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The administrator’s lawful acts before the revocation of the letters of administration or before her removal shall have the same validity as if there was no such revocation. It is elementary that the effect of revocation of letters testamentary or of administration is to terminate the authority of the executor or administrator, but 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]

Sec. 2, Rule 82 provides in clear and unequivocal terms the modes for replacing an administrator upon his death and absent a showing that the other members of the law firm to which the originally appointed administrator belonged were issued letters of administration after his death, they can only, at most, be deemed to have rendered legal services for they may be paid their professional fees [Quasha Ancheta Peña and Nolasco Law Office v. LCN Construction Corp., G.R. No. 174873 (2008)] 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] Page 241 of 481

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G. 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)] 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)]

1. Time within Which Claims

shall be Filed; Exceptions

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 the 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] 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]

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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] 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)]

2. Statute of Non-Claims General rule: Claim must be filed within the time limited in the notice; otherwise they are barred forever [Sec. 5, Rule 86] Purpose 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. L-12302 (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 affaits 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 b. Claims for funeral expenses c. Expenses for last sickness d. Judgment for money against decedent [Sec. 5, Rule 86] The period, once fixed by the courts, is mandatory [In Re the Administration of the Estate of Pascual de Villanueva, G.R. No. L-18403 (1961)]

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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 executor/administrator commences action, or prosecutes action already commenced by deceased in his lifetime, 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 debtor obtains a 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]

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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. Substantive law cannot be amended by a procedural rule [Boston Equity Resources, Inc. v. CA, G.R. No. 173946 (2013)] 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

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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 or

Administrator against an Estate

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 administrator necessary funds to defend such claim [Sec. 8, Rule 86]

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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 copy of claim has been served upon him. 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] Judgment of court approving or disapproving a claim shall be appealable as in ordinary cases [Sec. 13, Rule 86] 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] 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]

4. 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 affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and 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.

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mortgagee, may be foreclosed executor/administrator [Sec. 5, Rule 87]

H. Actions by and against Executors and Administrators

by

the

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)]

1. Actions by and against

Executors

Actions that may be commenced directly against executor or administrator 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)] The aforementioned instances are deemed actions that survive the death of the decedent [Aguas v. Llenos, G.R. No. L-18107 (1962); Festin 81, 2011 Ed.] 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 under Art. 365 of the Revised Penal Code. If the same act or omission complained of arises from quasi-delict, 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)] NO action upon a claim for the recovery of money or debt or interest shall be commenced against executor/administrator [Sec. 1, Rule 87] 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)] A mortgage belonging to the estate of the deceased person, as a mortgagee or assignee of the right of a

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.]

2. Recovery of Property

Concealed, Embezzled or Fraudulently Conveyed

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 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 The proceedings under Section 6, Rule 87 is only for purposes of eliciting information or securing evidence from persons suspected of concealing or conveying some of the decedent’s properties to the prejudice of creditors. A separate action is necessary for determination of ownership and recovery of

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possession [Chua v. Absolute Management Corporation, G.R. No. 144881 (2003)] 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, before grant of letters testamentary or of administration over an estate, embezzles or alienates any money, goods, chattels or effects of deceased, shall be liable to an action in favor of executor/administrator for double the value of the property sold, embezzled or alienated, to be recovered for benefit of estate [Sec. 8, Rule 87] When executor or administrator may bring action for recovery of property fraudulently conveyed by deceased a. There is 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]

REMEDIAL LAW

When recovery by creditor of property fraudulently conveyed may be done Any creditor may commence and prosecute to final judgment a like action for recovery of subject of conveyance or attempted conveyance if the following requisites are satisfied 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]

3. Sales, Mortgages, and Other

Encumbrances

Order of sale of personalty The court upon application of executor/administrator, and on written notice to heirs and other persons interested, may order the whole or a part of personal estate to be sold, if it appears necessary for a. Paying debts, expenses of administration, or legacies, or b. Preservation of the property [Sec. 1, Rule 89] When court may authorize sale, mortgage or encumbrance of realty Situation Restriction When personal estate is Authority to sell, insufficient to pay mortgage, or encumber debts, or where (1) sale so much of real estate, of personal estate may in lieu of personal injure business of estate, if it clearly persons interested in appears that such sale, estate, and (2) Property etc. would be beneficial appropriated by to persons interested testator in will is

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Situation insufficient to pay debts [Sec. 2, Rule 89]

If sale is beneficial to interested persons, although not necessary to pay debts, expenses, or legacies [Sec. 4, Rule 89]

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Restriction No authority if any person interested in the estate gives a bond, in a sum to be fixed by the court, conditioned to pay debts, expenses of administration and legacies, for security of creditors, executor/administrator [Sec. 3, Rule 89] Authorized if not inconsistent with provisions of the will and proceeds shall be assigned to persons entitled to the estate in the proper proportions

To pay debts, expenses of administration, or legacies in foreign country [Sec. 5, Rule 89]

Authorized in the same manner as for payment of debts or legacies in Philippines

If deceased was in his lifetime under contract, binding in law, to deed real property or interest therein [Sec. 8, Rule 89]

Not authorized if assets in hands of executor/administrator will be reduced as to prevent creditor from receiving debt or diminish his dividend

Where deceased held real property in trust for another person [Sec. 9, Rule 89] 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 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)]

REMEDIAL LAW

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)] Conditions of bond To pay debts, expenses of administration, and legacies within such time as court directs [Sec. 3, Rule 89] 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 benefit of either [Sec. 3, Rule 89] Regulations for granting authority to sell, mortgage or otherwise encumber estate a. The executor/administrator shall file 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 time and place for hearing such petition and cause notice to be given personally or by mail to persons interested, and by publication if deem proper c. The court may require executor/administrator to give additional bond conditioned on 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] 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)]

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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)]

I. Payment of Debts of Estate

Deed of sale, mortgage or encumbrance The deed executed by the executor or administrator shall be valid as if executed by deceased in his lifetime [Sec. 7-8, Rule 89]

Executor/administrator shall pay the same within the time limited for that purpose [Sec. 1, Rule 88]

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, 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 co-heirship 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)]

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 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 in abeyance until the civil case is settled [Dinglasan v. Chia, G.R. No. L-3342 (1951)] Part of estate from which debt paid (in order of preference) 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 3. Real property [Sec. 3, Rule 88] General rule: Personal estate not disposed of by will shall be first chargeable Exceptions: 1. Personal estate not sufficient for the purpose, or 2. Its sale will redound to the detriment of the participants for the estate [Sec. 3, Rule 88] If the exceptions above are present 1. The whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor/administrator 2. Court approval must first be obtained, and 3. Any deficiency shall be met by contributions in accordance with the provisions of Sec. 6 of Rule 88 (contributive shares of devisees, legatees, or heirs in possession).

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[Sec. 3, Rule 88] Estate to be retained to meet contingent claims If court is satisfied that a contingent claim is valid, it may order 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 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 – The assets retained in the hands of executor/administrator, not exhausted in payment of claims, shall be distributed by order of the court to persons entitled; but the assets so distributed may still be applied to the payment of the claim when established, 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] Court to fix contributive shares where devisees, legates, or heirs have been in possession before debts have been settled Where devisees, legatees, or heirs have entered into possession of portions of the estate before debts have been settled, the court may, by order, after hearing 1. Settle the amount of their several liabilities 2. Order how much and in what manner each shall contribute, and 3. Issue execution as circumstances require. [Sec. 6, 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)]

REMEDIAL LAW

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 no assets 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 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 deceased person in 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] 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

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[Sec. 11, Rule 88]

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2.

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. 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 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] 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

Not exceeding 6 months beyond the time which court might have allowed to original executor/administrator, and notice shall be given of time and place for hearing such application, as required in the last preceding section [Sec. 16, Rule 88] Personal property may, upon order, be sold 1. To pay debts, expenses, or legacies, or 2. If it appears necessary for preservation of the property [Sec. 1, Rule 89], or 3. 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 1. When personal estate is insufficient to pay debts, or 2. Where a. Sale of personal estate may injure business of persons interested in estate, and b. Property appropriated by testator in will is insufficient to pay debts [Sec. 2, Rule 89] 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. L2360 (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.] Proper procedure for granting authority to sell, mortgage, or encumber estate 1. Written petition of executor/administrator 2. Written notice to all heirs, legatees, devisees residing in Philippines

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Hearing Court order for sale of personal property or sale, mortgage, or encumbrance of real property 5. Recording in registry of deeds of province where the real estate concerned is situated of certified copy of court order and deed of executor/administrator [Sec. 7, Rule 89] 3. 4.

REMEDIAL LAW

J. Distribution and Partition Before there could be a distribution of 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 the right of a natural child b. Determination of proportionate shares of distributes 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. An estate is settled and distributed among the heirs only after the payment of the debts of the estate, funeral charges, expenses of administration, allowance to the widow, and inheritance tax [Agtarap v. Agtarap, G.R. Nos. 177099 and 177192 (2011)] Court may determine questions as to advancement made by decedent Advancements made or alleged to have been made to heirs by decedent may be determined by court having jurisdiction of estate proceedings; and final order of the court shall be binding on person raising the questions and on the heir [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)]

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

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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)]

b.

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.

c.

REMEDIAL LAW

Settlement of a decedent’s estate is a proceeding in rem which is binding on the whole world. All persons having interest in the subject matter involved, whether they are notified or not, are equally bound. Consequently, a liquidation of similar import or other equivalent general liquidation must also necessarily be a proceeding in rem so that all interested persons whether known to the parties or not may be bound by such proceeding [Philippine Savings Bank v. Lantin, G.R. L-33929 (1983)] The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them [Ramon v. Ortuzar, G.R. No. L-3299 (1951)]

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)]

3. Remedy of an Heir Entitled

to Residue but Not Given His Share

If there is a controversy as to who are lawful heirs or shares such shall be heard and decided as in ordinary cases [Sec. 1, Rule 90]

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. L26695 (1972)]

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)]

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)]

Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession.

Effect of final decree of distribution a. In rem; binding against the whole world

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4. Instances When Probate

Court May Issue Writ of Execution

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] 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. L-26695 (1972)]

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K. Trustees

Trustee

Note: This rule only applies to express trusts and not implied trusts which arise by operation of law [2 Regalado 148, 2004 Ed.]

Executor/Administrator

Accounts must be under oath and annually filed [Sec. 6(c), Rule 98]

Executor/Administrator Accounts are not under oath and shall be filed within one (1) year from the time of receiving letters testamentary or of administration, and as the court may require until the estate is wholly settled [Sec.8, Rule 86]

Court which has jurisdiction: a. RTC or MTC in which will was allowed if appointed to carry into effect the provisions of a will b. RTC of province in which property or portion affected by the trust is situated [Sec. 1, Rule 98]

Court which has jurisdiction may be the RTC or MTC [Sec. 19 and 31, B.P. 129]

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]

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

Executor/Administrator 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 [Sec. 2, Rule 89]

1. Distinguished From Trustee

REMEDIAL LAW

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 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. Besides, the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons [Araneta v. Perez, G.R. No. L-16962 (1962)]

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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 General rule: Before entering on the duties of his trust, a trustee shall file with clerk of court having jurisdiction of the trust a bond in amount fixed by court, payable to Government of Philippines and sufficient and available for protection of any party in interest Exceptions: Trustee 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] 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] Conditions 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: 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]

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3. Procedural Requisites for

the Removal and Resignation of a Trustee

a. Petition by parties beneficially interested b. Due notice to the trustee c. Hearing [Sec. 8, Rule 98]

4. Grounds for Removal and

Resignation of a Trustee

Grounds for removal a. Removal appears essential in the interests of petitioners b. Trustee is 1. Insane 2. Otherwise incapable of discharging his trust, or 3. Evidently unsuitable [Sec. 8, Rule 98] Resignation He may resign his trust if it appears to the court proper to allow such resignation [Sec. 8, Rule 98]

5. Extent of Authority of

Trustee

Nature of Possession The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same. A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust. In that case, prescription will commence to run from and after said repudiation and the knowledge thereof by the cestui [Salinas v. Tuazon, G.R. No. L-33626 (1931)] Territoriality of authority of trustee The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic. This is based on the principle that his authority cannot extend beyond the jurisdiction of the

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Republic, under whose courts he was appointed [3-A Herrera 250, 1996 Ed.]

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L. Escheat Escheat is a proceeding where the real and personal property of a person deceased in Philippines, who dies without leaving any will and without any legal heirs, becomes the property of the State [Municipal Council of San Pedro v. Colegio de San Jose, G.R. No. L45460 (1938)] It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction [Rellosa v. Gaw Chee Hun, G.R. No. L-1411 (1953)] Escheat proceedings are actions in rem, whereby an action is brought against the thing itself instead of the person. Thus, an action may be instituted and carried to judgment without personal service upon the depositors or other claimants. Jursidiction is secured by the power of the court over the res. Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as pubication is considered a general and constructive notice to all persons interested [RCBC v. Hi-Tri Development Corp., G.R. No. 192413 (2012)]

1. When to File Three instances of Escheats a. When a person dies intestate leaving property in Philippines leaving no heir [Sec. 1, Rule 91] b. Reversion proceedings in alienations in violation of Constitution or other statute [Sec. 5, Rule 91] c. Unclaimed Balances Act (Act No. 3936, as amended by PD 679) – dormant accounts for 10 years shall be escheated An action for reversion or escheat of lands sold to aliens disqualified from acquiring lands under the Constitution may be initiated by the Office of the Solicitor General. However, where the transferees are Filipino citizens, escheat proceedings can no longer prosper [Republic v. Register of Deeds of Roxas City, G.R. No. 158230 (2008)] Where to file a. If Resident – RTC of the province where the deceased last resided b. If Non-resident – RTC of the place where his estate is located [Sec. 1, Rule 91] c. Actions for reversion or escheat of properties alienated in violation of the Constitution or of

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any statute — in province where land lies in whole or in part [Sec. 5, Rule 91]

2. Requisites for Filing of

Petition

A person died intestate He left no heirs or persons by law entitled to the same c. Deceased left properties [City of Manila v. Archbishop of Manila, G.R. No. L10033 (1917); Sec. 1, Rule 91] a. b.

Escheat proceedings may be initiated by the Government through the Solicitor General or his representative [Sec. 1, Rule 91] Procedure Solicitor General or his representative in behalf of the Republic of Philippines files the petition [Sec. 1, Rule 91]  If petition is sufficient in form and substance, court shall make an order fixing date and place for hearing, which shall not be more than 6 months after entry of order [Sec. 2, Rule 91]  Court shall direct a copy of order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best [Sec. 2, Rule 91]  Court shall hear the case and judge whether or not the estate shall be escheated [Sec. 3, Rule 91]  Property escheated will be assigned a. If personal property – to the municipality or city where the deceased last resided b. If real property – to the municipalities or cities, respectively, in which the same is situated c. If the deceased never resided in Philippines – whole estate may be assigned to the respective municipalities or cities where the same is located.

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Court may order, upon motion or motu propio, that a permanent trust be established so that only the income from the property shall be used [Sec. 3, Rule 91] The right of escheat may be waived, either expressly or impliedly [Roman Catholic Archbishop of Manila v. Monte de Piedad, et al., G.R. No. L-45496 (1939)]

3. Remedy of Respondent

against Petition; Period for Filing a Claim

Period to file a claim to the estate Within 5 years from date of judgment; otherwise, barred forever [Sec. 4, Rule 91] A claimant to an escheated property must file his claim “within 5 years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable for him for the proceeds, after deducting the estate, but a claim not made shall be barred forever. The supposed “discovery of the deeds of donation” is not enough justification to nullify the escheat judgment which has long attained finality [Republic v. CA, G.R. No. 143483 (2002)] By whom Devisee, legatee, heir, surviving spouse, or other person entitled to such estate [Sec. 4, Rule 91] Effect of claim by one who is entitled to the estate Possession of and title to the estate shall be given. If estate has already been sold, then the city/municipality shall be accountable for the proceeds, less reasonable charges for care of estate; but a claim not made within 5 years shall be forever barred [Sec. 4, Rule 91]

Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.

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M. Guardianship Note: Rules 92-97 are now only applicable to guardianship over incompetent persons who are not minors. Guardianship over minors is governed by A.M. No. 03-02-05 SC or Rule on Guardianship of Minors. Who are incompetent persons 1. Those suffering from the penalty of civil interdiction 2. Hospitalized lepers 3. Prodigals 4. Deaf and dumb people who are unable to read and write 5. Those of unsound mind even though they have lucid intervals 6. Persons by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, thereby becoming an easy prey for deceit and exploitation [Sec. 2, Rule 92] A finding that a person is incompetent should be anchored on clear, positive and definitive evidence. Where the sanity of a person is at issue, expert opinion is not necessary and that the observations of the trial judge coupled with evidence establishing the person’s state of mental sanity will suffice [Oropesa v. Oropesa, G.R. No. 184528 (2012)] Guardianship The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself [3-A Herrera 193, 1996 Ed.] Guardian A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs [3-A Herrera 194, 1996 Ed.] Basis: parens patriae It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties. Unable as they are to take due care of what concerns

REMEDIAL LAW

them, they have the political community to look after their welfare [Nery v. Lorenzo, G.R. No. L-23096 (1972)] Kinds of guardians 1. Legal Guardian – deemed as guardian by provision of law, without need of court appointment [Art. 225, FC] 2. Guardian ad Litem – appointed by court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action 3. Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons. a. Guardian over the person b. Guardian of the property c. General guardian (both person and property) [2 Regalado 118, 2004 Ed.]

1. Guardianship of

Incompetent Persons Not Minors

Procedure Filing of petition [Sec. 1, Rule 93]  Court issues order setting time for hearing [Sec. 3, Rule 93]  Reasonable notice to the incompetent and persons mentioned in the petition Notice by publication or otherwise if incompetent is a nonresident [Sec. 3, Rule 93]  Filing of written opposition [Sec. 4, Rule 93]  Hearing where the alleged incompetent must be present if able to attend [Sec. 5, Rule 93]  If person in question is incompetent, court appoints a suitable guardian of his person or estate, or both [Sec. 6, Rule 93] The objectives of a hearing on a petition for appointment of a guardian under Rule 93 is for the court to determine: (a) whether a person is indeed a minor or an incompetent who has no capacity to care for himself and/or his properties; and (b) who is most qualified to be appointed as his guardian. Thus,

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creditors of the minor or the incompetent need not be identified or notified. This is because their presence is not essential to the proceedings for appointment of a guardian [Alamayri v. Pabale, G.R. No. 151243 (2008)]

6.

a. General Powers and Duties of Guardians Care and custody of person of his ward and management of his estate, or 2. Management of estate only 3. Management of property within Philippines (in case of non-resident ward) [Sec. 1, Rule 96] 1.

By the appointment, it became the guardian’s duty to care for her aunt’s person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. It also became the guardian’s right and duty to get possession of, and exercise control over her ward’s property, both real and personal, it being recognized that the ward has no right to possession or control of her property during her incompetency [Cañiza v. CA, G.R. No. 110427 (1997)] Specific duties 1. To pay just debts of ward out of a. Personal estate and income of his real estate of the ward; b. If (a) is not sufficient, real property of ward upon obtaining an order for its sale or encumbrance [Sec. 2, Rule 96] 2. To settle all accounts of his ward [Sec. 3, Rule 96] 3. To demand, sue for, and receive all debts due him, or, with the approval of the court, compound for the same and give discharges to debtor, on receiving a fair and just dividend of estate and effects [Sec. 3, Rule 96] 4. To appear for and represent ward in all actions and special proceedings, unless another person is appointed for that purpose [Sec. 3, Rule 96] 5. To manage property of ward frugally and without waste, and apply income and profits thereon, insofar as may be necessary, to comfortable and suitable maintenance of ward and his family. If such income and profits be insufficient for that purpose, to sell or encumber the real estate, upon being authorized by the

7.

8.

REMEDIAL LAW

court to do so, and apply proceeds to such maintenance [Sec. 4, Rule 96] To assent to partition of real or personal property owned by the ward jointly or in common with others, upon authority granted by the court, a. After hearing b. Notice to relatives of ward, and c. Careful investigation as to the necessity and propriety of proposed action [Sec. 5, Rule 96] To submit to court a verified sworn inventory of the property of the ward a. Within three months 1. after appointment, and 2. after the discovery, succession or acquisition of property of the ward not included in the inventory, and b. Annually [Sec. 7, Rule 96] To render sworn account to court for settlement and allowance a. Annually after appointment, which may be compelled upon application of an interested person [Sec. 7-8, Rule 96] b. As often as may be required after one year from appointment [Sec. 8, Rule 96]

Expenses and compensation allowed Guardian, other than a parent, shall be allowed 1. his reasonable expenses incurred in execution of his trust, and 2. compensation for his services as court deems just, not exceeding 15 per centum of net income of ward [Sec. 8, Rule 96] Embezzlement, concealment, or conveyance of ward’s properties Upon complaint of 1. Guardian or ward, or 2. Any person having actual or prospective interest in property of ward as creditor, heir, or otherwise Court may cite anyone suspected of having embezzled, concealed, or conveyed away any 1. Money, goods, or interest, or 2. Written instrument, to appear for examination touching such money, goods, interest, or instrument and make such orders to secure estate [Sec. 6, Rule 96] General rule: Purpose of the proceeding is to secure evidence from persons suspected of embezzling, concealing or conveying any property of the ward so as to enable the guardian to institute the appropriate

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action to obtain the possession of and secure title to said property. The court can neither determine ownership of the property claimed to belong to the ward nor order its delivery Exception: Court may direct delivery of property to the guardian only in extreme cases, where the right or title of the ward is clear and indisputable or where his title thereto has already been judicially decided [Cui v. Piccio, G.R. L-5131 (1952)] Selling and encumbering the property of the ward Guardian may present verified petition to court by which he was appointed for an order authorizing sale or encumbrance of estate Grounds 1. When income of estate under guardianship is insufficient to maintain ward and his family, or 2. When it appears that it is for the benefit of the ward [Sec. 1, Rule 95] Sale must first be confirmed by court and until such confirmation, not even equitable title passes [3-A Herrera 222, 1996 Ed.] Properties of a ward can only be sold under authority of the guardianship court. Without such authority, any sale would necessarily be illegal. The probate court had no jurisdiction to authorize the sale of any property belonging to an heir who is under guardianship without first requiring the guardian to secure the corresponding authority from the guardianship court [De Pua v. San Agustin, G.R. No. L-27402 (1981)] Contents of order for sale or encumbrance 1. Causes why sale or encumbrance is necessary or beneficial 2. Manner of sale (public or private) 3. Time and manner of payment 4. Security, if payment deferred 5. Additional bond from guardian, if required [Sec. 4, Rule 95] Duration of order of sale or encumbrance No order of sale shall continue in force for more than 1 year after granting of the same, without a sale being had [Sec. 4, Rule 95] Investment of proceeds and management of property

REMEDIAL LAW

The court may 1. authorize and require guardian to invest proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal estate, for best interest of all concerned 2. make such other orders for management, investment, and disposition of estate and effects, as circumstances may warrant [Sec. 5, Rule 95]

2. Conditions of the Bond of

the Guardian

Note: Applicable for both Guardianship of Minors and incompetents a. To make and return to court, within 3 months after issuance of letters of guardianship, true and complete inventory of all real and personal estate of his ward which shall come to his possession or knowledge, or to possession or knowledge of any other person from him b. To faithfully execute duties of his trust, to manage and dispose of estate according to the Rules for best interests of ward, and to provide for his proper care, custody, and education c. To render a true and just account of all property of the ward in his hands, and of all proceeds or interest derived from them, and of management and disposition of the same, at time designated by this rule and such other times as court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all estate, effects, and moneys remaining in his hands, or due from him on such settlement, to person lawfully entitled thereto d. To perform all orders of court and such other duties as may be required by law [Sec. 1, Rule 94; Sec. 14, A.M. No. 03-02-05-SC]

3. Rule on Guardianship of

Minors [A.M. NO. 03-02-05SC]

General rule: Father and mother shall jointly exercise legal guardianship over person and property of their unemancipated common child without necessity of court appointment [Sec. 1; also Art. 225, FC] In case of disagreement, father’s decision shall prevail, unless there is a judicial order to the contrary [Art. 225, FC]

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However, if market value of property or annual Income of child exceeds P50,000.00, parent concerned shall furnish a bond in such amount as court may determine, but in no case less than 10 per centum of the of such property or annual income, to guarantee performance of obligations prescribed for general guardians [Sec. 16] Procedure Filing of petition [Sec. 2]  Court shall fix time and place for hearing [Sec. 3]  Reasonable notice to the persons mentioned in the petition and the minor, if 14 years old or over Other general or special notice [Sec. 8]

At discretion of court, hearing on guardianship may be closed to public. Records of case shall not be released without court approval [Sec. 9] If the minor is non-resident, the court may dispense with his presence [Sec. 12]  Issuance or denial of letters of guardianship  Service of final and executory judgment or order upon the Local Civil Registrar of municipality or city where minor resides and Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to court their compliance within 15 days from receipt of the order [Sec. 13] PETITION FOR APPOINTMENT OF GUARDIAN

Who may file a. Resident minor 1. Any relative, or 2. Other person on behalf of a minor, or 3. Minor himself, if 14 years of age or over, or 4. Secretary of DSWD and Secretary of DOH, in case of an insane minor who needs to be hospitalized [Sec. 2] b. Non-resident minor who has property in Philippines 1. Any relative or friend of such minor, or 2. Anyone interested in his property, in expectancy or otherwise [Sec. 12] Where to file

Resident minor

Notice to the non-resident minor by publication or any other means as court may deem proper [Sec. 12]  Social worker must conduct case study of minor and all prospective guardians and submit his report and recommendation to court for its guidance before scheduled hearing [Sec. 9]  Hearing a. Compliance with notice requirement must be shown b. Prospective ward shall be presented to court

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Non-resident minor

Family Court of province or city where minor actually resides Family Court of province or city where his property or any part thereof is situated

[Sec. 3] Grounds for filing a. Death, continued absence, or incapacity of parents b. Suspension, deprivation or termination of parental authority c. Remarriage of surviving parent, if latter is found unsuitable to exercise parental authority d. When best interests of the minor so require [Sec. 4] Qualifications of guardians Court shall consider the guardian’s a. Moral character b. Physical, mental and psychological condition c. Financial status d. Relationship of trust with minor e. Availability to exercise powers and duties of a guardian for full period of the guardianship f. Lack of conflict of interest with minor, and g. Ability to manage property of minor [Sec. 5] Order of preference in appointment (in default of parents or a court-approved guardian) a. Surviving grandparent and in case several grandparents survive, court shall select any of them taking into account all relevant considerations

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Oldest brother or sister of minor over 21 years of age, unless unfit or disqualified c. Actual custodian of minor over 21 years of age, unless unfit or disqualified d. Any other person, who in sound discretion of court, would serve best interests of minor [Sec. 6] b.

Contents of petition a. Jurisdictional facts b. Name, age and residence of prospective ward c. Ground rendering appointment necessary or convenient d. Death of parents of minor, or termination, deprivation or suspension of their parental authority e. Remarriage of minor’s surviving parent f. Names, ages, and residences of relatives within 4th civil degree of the minor, and of persons having him in their care and custody g. Probable value, character and location of property of minor h. Name, age and residence of person for whom letters of guardianship are prayed [Sec. 7] Petition shall be verified and accompanied by certification against forum shopping. No defect in petition or verification shall render void issuance of letters of guardianship [Sec. 7] Who may file opposition a. Any interested person by written opposition [Sec. 10] b. Social worker ordered to make case study report, may intervene on behalf of minor if he finds that petition for guardianship should be denied [Sec. 9]

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Guardian of non-resident minor – Management of all his property within Philippines [Sec. 17] b.

Bonds of guardians Before a guardian enters upon execution of his trust, or letters of guardianship issue, he may be required to post bond in such sum as determined by court and conditioned on similar grounds as for guardians of incompetent persons [Sec. 14] Whenever necessary, court may require guardian to post new bond and may discharge from further liability sureties on the old bond after due notice to interested persons, if no injury may result to those interested in the property [Sec. 15] Liability In case of breach of any of its conditions, guardian may be prosecuted in same proceeding for benefit of ward or of any other person legally interested in the property [Sec. 15] REMOVAL, RESIGNATION AND TERMINATION OF GUARDIANSHIP Removal How: Upon reasonable notice to the guardian Grounds: The guardian a. Becomes insane or otherwise incapable of discharging his trust b. Is found to be unsuitable c. Wasted or mismanaged property of ward or d. Failed to render account or make return for thirty days after it is due [Sec. 24] RESIGNATION

Grounds for opposition a. Majority of minor, or b. Unsuitability of person for whom letters are prayed [Sec. 10] POWERS AND DUTIES In general a. Guardian of resident minor – Care and custody of person of his ward and management of his property, or only management of his property

Ground: Justifiable causes Upon removal or resignation of guardian, the court shall appoint new one. No motion for removal or resignation shall be granted unless guardian has submitted the proper accounting of property of ward and court has approved the same. [Sec. 24] TERMINATION Grounds: Ward has come of age or has died

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How Terminated a. Court motu proprio, or b. Upon verified motion of any person allowed to file petition for guardianship Duty to notify: Guardian shall notify court of fact of coming of age or death of ward within 10 days of its occurrence [Sec. 25] Final and executory judgment or order shall be served upon Local Civil Registrar of municipality or city where minor resides and Register of Deeds of province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices [Sec. 26]

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N. Writ of Habeas Corpus In general Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restraint is illegal [Velasco v. CA, G.R. No. 118644 (1995)] 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)] 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] Concept of restraint Actual and effective and not merely nominal or moral restraint is required [Zagala v. Illustre, G.R. No. L23999 (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 freedom of action is sufficient [Moncupa v. Enrile, G.R. No. L63345 (1986)]

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The restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action [Sambong v. CA, G.R. No. 111876 (1996)] 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)]. 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)]. The writ of habeas corpus is not available to one who was released on bail, because actual physical restraint is required. Habeas corpus is the proper remedy for a person 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)]. In the case of minors 1. Prosecuted for the purpose of determining the right of custody over a child. 2. Question of identity is relevant and material and must be convincingly established [Tijing v. CA, G.R. No. 125901 (2001)] 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

REMEDIAL LAW

03-04-04-SC, Re Proposed Rule on Custody of Minors and Writ of Habeas corpus in Relation to Custody of Minors]

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 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)] 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 The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint. Any restraint which will preclude freedom of action is sufficient [Villavicencio v. Lukban, G.R. No. 14639 (1919)] 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-50405-06 (1981)] Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. They rarely touch the merits of the case and require no pronouncement with respect thereto [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]

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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 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. L-18760 (1922)] It is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court [Mangila v. Judge Pangilinan, G.R. No. 160739 (2013)] 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)] The writ of habeas corpus will not issue where the person alleged to be restrained of liberty is in the custody of an officer under a process issued by a court which has jurisdiction to do so. Since Major Aquino stands charged in court martial proceedings for alleged violations of Article 67 (attempting to begin or create a mutiny) and Article 96 (conduct unbecoming an officer and a gentleman), the legality of his arrest is settled and the writ is unavailing. Furthermore, the writ of habeas corpus is not the proper mode to question conditions of confinement, the writ will only lie if what is questioned is the fact or duration of confinement. [Aquino v. Esperon, 174994, (2007)]. The restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty. This is sanctioned by Sec. 52.4 of R.A. No. 8551 (New DILG Act of 1990). Even assuming that there initially was no administrative investigation when placed in custody, the subsequent investigation would legalize his restrictive custody. [Ampatuan v. Macaraig, (2010)]. The writ of habeas corpus cannot be availed of in cases of detention by virtue of a judicial process or

REMEDIAL LAW

valid judgment. Exceptions where the writ may be availed of as a post-conviction 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)]. Dimagiba’s contention that the principle of retroactivity of penal laws would benefit him is not correct since Adm. Cir. 12-2000 is not a law which deleted the penalty of imprisonment but a circular which merely established a rule of preference, subject to the judge’s discretion, in imposing penalties under B.P. Blg. 22. The SC cannot delete the penalty of imprisonment for that would in effect be a law which only Congress may enact. Nor would the plea of equal protection of laws be appropriate. This is because SC A.C. No. 12-2000 as aforestated is not a law. Hence we apply the general rule that habeas corpus is unavailing if a person is under custody by virtue of legal process or a valid judgment. [Go v. Dimagiba, G.R. No. 151876. (2005)]. Adm. Cir. 08-2008 (Rule of preference in the imposition of penalties in libel) not a ground for the release on habeas corpus of reporter. The circular cannot be given retroactive effect where judgment in criminal case already final and executory. [Adonis v Tesoro, (2013)]. 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, 486488] Overview of Procedure

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1. 2. 3.

4.

5. 6. 7.

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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” but 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 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 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 If imprisonment or restraint is without any legal authority, such fact shall appear [Sec. 3, Rule 102]

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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. 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, 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 The return shall be considered only as a considered prima plea of the facts

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facie evidence of the cause of restraint

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therein set forth, and the party claiming the custody must prove such facts

[Sec. 13, Rule 102]

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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 Proper or

3. Distinguish Peremptory

Applicable

Writ from Preliminary Citation

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. Peremptory writ A written document which unconditionally Requires the commands the respondent to appear respondent to have the and show cause why body of the detained the peremptory writ person before the should not be granted court at a time and place therein specified [Lee Yick Hon v. Collector of Customs, G.R. No. L-16779 (1921)]

When WHC is NOT proper a. For asserting or vindicating the denial of right to bail [Galvez v. CA, G.R. No. 114046(1994)] 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. L18871 (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)]

Preliminary citation

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

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)]

5. When Writ Disallowed or

Discharged

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

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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. 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. L-2128 (1948)]

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c.

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)] 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, 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)] Remedy In such cases, instead of availing themselves of the extraordinary remedy of a petition for habeas corpus, persons restrained under a lawful process or order of the court must pursue the orderly course of trial and exhaust the usual remedies. This ordinary remedy is to file a motion to quash the information or the warrant of arrest [In the matter of the petition for habeas corpus of Datukan Malang Salibo v. Warden, G.R. No. 197597 (2015)] The object of the writ of habeas corpus is to inquire into the legality of the detention, and, if the detention is found to be illegal, to require the release of the detainee. Equally well settled however, is that the writ will not issue where the person in whose behalf the writ is sought is out on bail, or is in custody of an officer under process issued by a court or judge with jurisdiction or by virtue of a judgment or oder of a court of record [Mangila v. Pangilinan, G.R. No. 160739 (2013]

The writ exists as a speedy and effectual remedy to relieve persons from unlawful restraint and as an effective defense of personal freedom. It is issued only for the lone purpose of obtaining relief for those illegally confined or imprisoned wihout sufficient legal basis. It is not issued when the person is in custody because of a judicial process or a valid judgment. Thus, when the detention was by virtue of a final judgment, the writ of habeas corpus may not issue [Adonis v. Tesoro, G.R. No. 182855 (2013)] What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for the writ, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4, Rule 102, be no longer illegal at the time of the filing of the application [Office of the Solicitor General v. De Castro, A.M. No. RTJ-06-2018 (2007)] Where the person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a preliminary citation to the government officer having custody to show cause why the writ should not issue. When the cause of the detention appears to be patently illegal, the court may issue a peremptory writ requiring the unconditional production before the court of the body of the person detained at the date and time specified. [Lee Yick Hon v. Insular Collector of Customs, 41 Phil. 548, (1921)].

6. Distinguished From Writ of

Amparo and Habeas Data

Writ of

habeas corpus Extends to all cases of illegal confinement or detention (deprivation of liberty), or where rightful custody is withheld from person entitled thereto

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Writ of

Writ of habeas

ONLY covers extralegal killings and enforced disappearances 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

amparo

data

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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)] The writ of amparo, in its present form, is confined only to these two instances of “extralegal killings” and enforced disappearances [Rev. Fr. Reyes v. CA, G.R. No. 182161 (2009)] The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]

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The verified petition shall allege the following 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 [Sec. 4] Answer to the Petition must be verified and filed within 5 days after service of summons and copy of petition [Sec. 7] Motion to dismiss is not allowed except on ground of lack of jurisdiction over a. Subject matter or b. Parties [Sec. 6]

7. Rules on Custody of Minors

Case study Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pre-trial [Sec. 8]

RULES ON CUSTODY OF MINORS

Pre-trial Pre-trial is mandatory [Sec. 9] a. Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pre-trial [Sec.10] b. If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed

See Comparative Table at the end of Writ of Habeas Data for a more comprehensive list of distinctions.

and Writ of Habeas Corpus In Relation To Custody of Minors [A.M. No. 03-04-04SC]

Applicability a. Petitions for custody of minors and b. Writs of habeas corpus in relation thereto [Sec. 1] ROC shall apply suppletorily [Sec. 1]

c.

PETITION FOR CUSTODY OF MINORS Who may file Any person claiming right of custody [Sec. 2] Party against whom it may be filed shall be designated as the respondent. Where to file Family Court of the province or city a. where the petitioner resides or b. where the minor may be found [Sec. 3] Contents of petition

Unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner [Sec. 11] If the 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 [Sec. 9]

Provisional order awarding custody After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody a. Both parents jointly

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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 7 years of age and of sufficient discernment, unless grandparent chosen is unfit or disqualified d. The eldest brother or sister over 21 years of age, unless unfit or disqualified e. The actual custodian of the minor over 21 years of age, unless unfit or disqualified f. Any other person or institution the court may deem suitable [Sec. 13]

c.

In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare [Sec. 14] Interim reliefs a. Temporary visitation rights - court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents. 1. Unless the court finds said parent or parents unfit or disqualified. 2. The temporary custodian shall give the court and non-custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days [Sec. 15] b. Hold departure order – the minor child shall not be brought out of the country without prior order from the court while the petition is pending. 1. The Court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from Philippines without court permission. 2. The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance. 3. The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing [Sec. 16]

REMEDIAL LAW

Protection order (PO) - court may issue a PO requiring any person 1. To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place 2. To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded 3. To refrain from acts or omission that create an unreasonable risk to minor 4. To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods 5. To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court 6. To comply with such other orders as are necessary for the protection of the minor [Sec. 17]

Judgment Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home. Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody [Sec. 18]

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Appeal Appeal from the decision shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties [Sec. 19] PETITION FOR WRIT OF HABEAS CORPUS INVOLVING CUSTODY OF MINORS Where filed; where enforceable A verified petition for a writ of habeas corpus involving custody of minors is 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 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 regular 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. 03-04-04SC, may therefore be filed with any of the proper RTCs within the judicial regional where enforcement thereof is sought [Tujan-Militante v. Cada-Deapera, G.R. No. 210636 (2014)] Best interest of the child The best interest of the child prevails over any agreement on custody. Any such agreement is void for being contrary to Article 213 of the Family Code. In this case, the child was below seven years when such agreement was executed. But since the child had in the meantime turned 15, it is now the best interest of the child which becomes the standard for custody [Dacasin v. Dacasin, G.R. No. 168785 (2010)] Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Art. 211 of the Family Code, husband and wife have joint parental authority over their son and consequently, joint custody. And although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of judicial grant of custody to one parent, both parents are still entitled to the custody of their child. Thus, where the husband’s cause of action is the deprivation of his right to see his child, the remedy of habeas corpus is available to him [Salientes v. Abanilla, G.R. No. 162734 (2006)] Tender age presumption General rule: No child under seven years of age shall be separated from the mother Exception: The court finds compelling reasons to order otherwise [Art. 213, FC] The tender age presumption may be overcome only be compelling evidence of the mother’s unfitness. But sexual preference or moral laxity alone does not prove parental neglect or incompetence. It should be clearly established that such moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care [Pablo-Gualberto v. Gualberto, G.R. No. 154994 (2005)]

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Specific uses of depositions Deposition By whom used Purpose Any deposition Any party Contradicting or impeaching the testimony of deponent as a witness 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 An adverse party Any purpose Deposition of a witness, whether or not a party 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 orally in open court, to allow the deposition to be used; [Sec. 4, Rule 23]

O. Writ of Amparo [A.M. 079-12-SC] Writ of Amparo, in General Literally means “to protect” It is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by a public official or employee or a private individual or a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof. [S1, Rule on the Writ of Amparo]. Came originally from Mexico and evolved into many forms 1. Amparo libertad – for protection of personal freedom 2. Amparo contra leyes – for judicial review of the constitutionality of statutes 3. Amaparo casacion – judicial review of constitutionality and legality of judicial decisions 4. Amparo agrario – for protection of peasants’ rights [Secretary of Justice v. Manalo, G.R. No. 180906 (2008)] The remedy of the writ of amparo is an equitable and extraordinary remedy to safeguard the right of the people to life, liberty and security, as enshrined in the 1987 Constitution [De Lima v. Gatdula, G.R. 204528 (2013)] The remedy of the writ of amparo serves both preventive and curative roles in addressing the

problem of extralegal killings and enforced disappearances. 1. Preventive – it breaks the expectation of impunity in the commission of offenses 2. Curative – it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action [Secretary of National Defense v. Manalo, G.R. No. 180906 (2008)]

1. Coverage Available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity [Sec.1] The writ shall cover a. Extralegal killings (killings committed without due process of law) and b. Enforced disappearances [Sec. 1] Elements of enforced disappearance, as statutorily defined in R.A. 9851 a. that there be an arrest, detention, abduction or any form of deprivation of liberty b. that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization c. that it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition, and d. that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time

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[Caram v. Segui, G.R. No. 193652 (2014)] In our jurisdiction, the contextual genesis for the present Amparo Rule has limited the remedy as a response to extrajudicial killings and enforced disappearances, or threats thereof [Spouses Santiago v. Tulfo, G.R. No. 205039 (2015)] The writ applies only to the right to life, liberty and security of persons and not property. The writ of amparo does not envisage the protection of concerns that are purely property or commercial in nature [Pador v. Arcayan citing Tapuz v. Del Rosario, G.R. No. 183460 (2013)] “Right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person. Right to security includes a. Freedom from fear b. Guarantee of bodily and psychological integrity or security c. Guarantee of protection of one’s rights by the government Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. [Secretary of National Defense v. Manalo, G.R. No. 180906 (2008)] There is a violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts a. Threat of killing their families if they tried to escape b. Failure of the military to protect them from abduction c. Failure of the military to conduct effective investigation [Secretary of National Defense v. Manalo, G.R. No. 180906 (2008)] The writ of amparo does not protect the right to travel. Where the petitioner failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, the writ of amparo will not lie [Reyes v. Gonzales, G.R. No. 182161 (2009)]

REMEDIAL LAW

Nature The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings [Rodriguez v. Macapagal-Arroyo, G.R. No. 191805 (2011)] A petition for a writ of amparo is not available in order for a biological mother to recover custody of child from the DWSD. There is no enforced disappearance within the context of the Rules on the Writ of Amparo. Christina's directly accusing the respondents of forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental authority over the child and contesting custody over him. Since it is extant from the pleadings filed that what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. [Caram v. Segui, (2014)]. The coverage of the Writ of Amparo is confined to cases of extralegal killings and enforced disappearances or threats thereof. Hence the writ cannot be availed of by an alien detained by the Bureau of Immigration by virtue of legal process. (Mison v. Gallegos, (2015)]. Under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity. But even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. Here, petitioners are mere security guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do not work for the government and nothing has been presented that would link or connect them to some covert police, military or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by some

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governmental involvement. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person. (Navia v Pardico, (2012)]. The inclusion of petitioners' names in the Order of Battle List does not, by itself, constitute an actual threat to their rights to life, liberty and security as to warrant the issuance of a writ of amparo. (Ladaga v. Mapagu, (2012)]. Court may motu proprio dismiss a petition for writ of amparo, regardless of the filing of a motion to dismiss, if it is clear that the case falls outside the purview of the Rules on the Writ of Amparo. (Santiago v. Tulfo, (2015).

2. Distinguish From Habeas

Corpus and Habeas Data

See [Habeas Corpus] Distinguished From Writ of Amparo and Habeas Data above and Comparative Table at the end of Writ of Habeas Data.

3.

Amparo v. Search Warrant

“The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e. “Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of 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” [Secretary of National Defense v. Manalo, G.R. No. 180906 (2008)]

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4. Who May File a. Aggrieved party, or b. Qualified person or entity in the following order 1. Any member of the immediate family namely the spouse, children and parents of the aggrieved party 2. 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, or 3. Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order the order established herein [Sec. 2] Ratio for preference for filing party a. Necessary for the prevention of indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party [Boac v. Cadapan, G.R. Nos. 184461-62 (2011)] b. Untimely resort to the writ by a non-member of the family may endanger the life of the aggrieved party [Phil. Judicial Academy Journal, June-Dec 2008 Vol. 10 Issue 30, p. 243] Where to file a. RTC where the threat, act or omission was committed or any of its element occurred, or b. Sandiganbayan—unlike the writ of habeas corpus, because public officials and employees will be respondents in amparo petitions, or c. Court of Appeals, or d. Supreme Court, or e. Any justice of such courts [Sec. 3] May be filed on any day, including Saturdays, Sundays, and holidays, from morning until evening. The writ shall be enforceable anywhere in Philippines [Sec. 3]

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No docket fees Petitioner shall be exempted from payment of docket fees and other lawful fees when filing the petition [Sec. 4] Contents of the petition A signed and verified petition shall contain a. The personal circumstances of the petitioner b. The name and personal circumstances of the respondent responsible for the threat, actor omission If the name is unknown or uncertain, may be described by an assumed appellation c. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent 1. How such threat or violation is committed 2. With the attendant circumstances detailed in supporting affidavits d. The investigation conducted, if any, specifying 1. Names, the personal circumstances and addresses of the investigating authority or individuals 2. Manner and conduct of the investigation 3. Together with any report e. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission, and f. The relief prayed for. It may include a general prayer for other just and equitable reliefs [Sec.5] Issuance of writ Upon filing of petition, writ shall immediately issue if on its face it ought to issue. Who shall issue the writ: clerk of court, however 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. Date and time for summary hearing of the petition shall be set not later than 7 days from date of issuance [Sec. 6] President may not be impleaded as respondent because of presidential immunity from suit. [Rubrico v. Macapagal-Arroyo, (2010)]; Burgos v. Macapagal-Arroyo, (2010)].

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May the AFP Chief of Staff and the PNP director be included as respondents in a writ of amparo case solely on the basis of command responsibility? Yes but not for the purpose of attaching accountability and responsibility to them for the enforced disappearance of Lourdes but only to determine the author who, at the first instance, is accountable for and has the duty to address the disappearance and harassments complaint of in order to enable the court to devise remedial measures. (Rubrico v. MacapagalArroyo, G.R. No. 183871, (2010)].

5. Contents of Return When to file return Respondent must file a verified written return within 72 hours after service of writ, together with supporting affidavits. The period to file a return cannot be extended even on highly meritorious ground [Sec. 9] Contents of the return a. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission b. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission c. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party, and d. If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken 1. to verify the identity of the aggrieved party 2. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible 3. to identify witnesses and obtain statements from them concerning the death or disappearance 4. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance 5. to identify and apprehend the person or persons involved in the death or disappearance, and 6. to bring the suspected offenders before a competent court., and

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The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case.

No general denial of the allegations allowed [Sec. 9] 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 l. Petition for certiorari, mandamus or prohibition against any interlocutory order [Sec. 11] Prohibited pleadings; Suppletory application of the Rules of Court

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To whom returnable a. If filed with RTC, returnable to RTC or any judge b. If filed with Sandiganbayan, CA or any justice, returnable to such court or any justice or the RTC where the threat, act or omission was committed or any of its elements occurred. c. If filed with the SC, returnable to the SC or any justice, or to the CA, SB or any of its justices, or the RTC where the threat, act or omission was committed or any of its elements occurred [Sec. 3]

6. Effect of Failure to File

Return

In case the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte [Sec. 12]

7. Omnibus Waiver Rule All defenses shall be raised in the return, otherwise, they shall be deemed waived [Sec. 10]

8. Procedure for Hearing

What is prohibited under Sec. 11 of A.M. No. 07-912-SC are motions for reconsideration directed against, interlocutory orders or interim relief orders, not those assailing the final judgment or order. The pleadings and motions enumerated in Sec. 11 of A.M. No. 07-9-12-SC would unnecessarily cause delays in the proceedings; they are, thus, proscribed since they would counter to the summary nature of the rule on the writ of amparo. A motion seeking reconsideration of a final judgment or order in such case, obviously, no longer affects the proceedings.

Summary hearing Hearing on the petition shall be summary.

Moreover, the ROC applies suppletorily to A.M. No. 07-9-12-SC insofar as it is not inconsistent with the latter. Accordingly, there being no express prohibition to the contrary, the rules on motions for reconsideration under the ROC apply suppletorily to the Rule on the Writ of Amparo. [Mamba, et al. v. Buena, G.R. No. 191416 (2017)]

Judgment The court shall render judgment within ten (10) days from the time of petition is submitted for decision [Sec.18]

The RTC judge acted with grave abuse of discretion in ordering the Respondents De Lima et al., to file an answer rather than a return. A return is different from and serves a different function from an answer. (De Lima v. Gatdula, (2013)].

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. Hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus [Sec. 13]

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]

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Archiving and revival of cases If the case cannot proceed for valid cause, the court shall not dismiss the petition but shall archive it. If after the lapse of two (2) years from the notice of archiving, the petition shall be dismissed for failure to prosecute [Sec. 20]

INTERIM RELIEFS AVAILABLE TO THE PETITIONER a.

Temporary Protection Order 1. Issued upon motion or motu proprio 2. That the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers concerned [Sec. 14(a)] 3. Different from the inspection and production order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte.

b.

Inspection Order 1. Issued only upon verified motion and after due hearing 2. Directed to any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. 3. The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons [Sec. 14(b)] 4. Requires hearing, may be availed of both the petitioner and the respondent 5. If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, the aggrieved party is not precluded from filing a petition for certiorari with the SC

c.

Production Order 1. Issued only upon verified motion and after due hearing 2. Directed to 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.

9. Institution of Separate

Action

The Rule shall neither preclude the filing of separate criminal, civil or administrative actions [Sec. 21]

10. Effect of Filing a Criminal

Action

Reliefs under the writ shall be available by motion in a criminal case. Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. When a criminal action has been commenced, no separate petition for the writ shall be filed [Sec. 22]

11. Consolidation When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition [Sec. 23]

12. Interim Reliefs Available To

Petitioner and Respondent

When available Upon filing of the petition or at any time before final judgment

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In case of opposition, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition [Sec. 14(c)] Opposition may be had on the following grounds i. National security ii. Privileged nature of the information

Not the same as search warrant for law enforcement under Art. III, Sec. 2 of the Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents More similar to production of documents or things under Sec. 1, Rule 27 [Secretary of National Defense v. Manalo, G.R. No. 180906 (2008)] d. Witness protection order 1. Issued upon motion or motu proprio 2. Order may refer the witnesses to i. The Department of Justice for admission to the Witness Protection, Security and Benefit Program. ii. Other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety [Sec. 14(d)] Interim reliefs available to the respondent 1. Inspection Order 2. Production Order [Sec. 15] Requisites 1. Verified motion of the respondent 2. Due hearing 3. Affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent [Sec. 14(b)]

13. Quantum of Proof in

Application for Issuance of Writ of Amparo

The parties shall establish their claims by substantial evidence. Technical rules of evidence are not strictly observed in writ of amparo case. The fair and proper rule is to

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consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. The courts should exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases. [Razon v. Tagitis, (2009)]. The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs. (Yano v. Sanchez, G.R. No. 186640, 11 February 2010 [e.b.]). Before a concerned citizen may file a petition for writ of amparo in behalf of a non-relative, the petitioner must allege that there were no known members of the immediate family or relatives of the aggrieved party in line with Sec. 2(c) of the RWA. Compare with a habeas corpus proceeding, any person may apply for the writ on behalf of the aggrieved party. [Boac v Cadapan, (2011)]. Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an amparo or habeas corpus decision. The appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino was not automatically executory. That would defeat the very purpose of having summary proceedings in amparo petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals that may be taken therefrom. [Boac v Cadapan, (2011)]. If respondent is a public official or employee Must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was observed in the performance of duty. Cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability

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If respondent is a private individual or entity Must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. [Sec. 17] With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves. Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained [Secretary of National Defense v. Manalo, G.R. No. 180906 (2008)] The writ can only be issued upon reasonable certainty. Substantial evidence is sufficient to grant the writ because the respondent is the State which has more resources than the petitioner. However, the SC held that mere inclusion in an Order of Battle List is insufficient to grant the writ absent a finding of a direct relation between prior deaths and the subject list. No evidence was shown that the deaths occurred due to inclusion in the list [Ladaga v. Magapu, G.R. No. 189689 (2012)] That a public official failed to observe extraordinary diligence in the performance of his duties does not result in the automatic grant of the writ. Such failure does not relieve the petitioner from establishing his claim by substantial evidence [Yano v. Sanchez, G.R. No. 186640 (2010)] For the protective writ of amparo to issue, allegation and proof of the persons subject thereof are missing are not enough. The petitioner is an amparo case has the burden of proving by substantial evidence the indispensable element of government participation [Navia v. Pardico, G.R. No. 184467 (2012)] If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied [Sec. 18]

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P. Writ of Habeas Data [A.M. No. 08-1-16-SC] 1. Scope of the Writ The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party [Sec. 1] Purpose It is an independent and summary remedy 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. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. There must be a nexus between the right to privacy, as well as the violation or threatened violation of the rights to life, liberty, and security, for the writ to issue [Gamboa v. Chan, G.R. No. 193636 (2012)] The writ of habeas data is not available to an employee who wanted to get details on the reason for her transfer from Pampanga to Alabang. The issue essentially is one of labor law not properly the subject of the writ. [Manila Electric Co. v. Gopez-Lim, (2010)]. Notes: a. Writ of Habeas data was not enacted solely for the purpose of complementing the Writ of Amparo in cases of extralegal killings and enforced disappearances. It may be availed of in cases outside of extralegal killings and enforced disappearances. Habeas data, to stress, was designed “to safeguard individual freedom from abuse in the information age.” It can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy [Vivares v. St Theresa’s College G.R. No. 202666 (2014)] b. Nothing in the Rule suggests that the habeas data protection shall be available only against abuses of a person or entity engaged in the business of

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gathering, storing, and collecting of data [Vivares v. St Theresa’s College G.R. No. 202666 (2014)] Nature As an independent and summary remedy to protect the right to privacy especially the right to informational privacy, the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification [Rodriguez v Macapagal-Arroyo, G.R. No. 191805 (2011)]

2. Availability of Writ Where to file a. RTC, at the option of the petitioner 1. Where petitioner resides, or 2. Where respondent resides, or 3. Which has jurisdiction over the place where the data or information is gathered, collected or stored b. SC, CA, SB (when action concerns public data files of government offices) [Sec. 3] Writ is enforceable anywhere in Philippines [Sec. 4] No fees for indigent petitioners The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition [Sec. 5] 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)]

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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. Even if the petition alleges a privacy interest in the suppression of the video, the petitioner failed to explain the connection between such interest and any violation of his right to life, liberty, or security. Courts cannot speculate or contrive versions of possible transgressions. 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)] Respondent must be engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. However, it is not necessary that the respondent does these acts as a business or for profit. [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]

3. Distinguish from Habeas

Corpus and Amparo

See [Habeas Corpus] Distinguished From Writ of Amparo and Habeas Data above and Comparative Table at the end of Writ of Habeas Data.

4. Who May File the Petition 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]

5. Contents of the Petition Contents of the petition A verified written petition for a writ of habeas data should contain

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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]

6. Contents of the Return a.

b.

c.

The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others 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 3. the currency and accuracy of the data or information held, and 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 five (5) working days from service of the writ,, together with supporting affidavits. The 5-day period

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may be reasonably extended by the Court for justifiable reasons. 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 l. 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] Effect of failure to file return In case the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte [Sec. 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]

7. 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

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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 ten (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]

8. 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]

9. Effect of Filing Criminal

Action

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 When a criminal action has been commenced, no separate petition for the writ shall be filed. [Sec. 22]

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10. 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]

11. 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 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. The determination of whether the privilege of the writ of habeas data may be granted entails a delicate balancing of the alleged intrusion upon a person’s private life and the relevant state interest involved [Gamboa v. Chan, G.R. No. 193636 (2012)

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Comparative table of the writs of habeas corpus, amparo, and habeas data

Habeas corpus

Amparo

Habeas data

a.

Nature, scope, function

All cases of illegal confinement and detention by which any person is deprived of his liberty b. Deprivation of rightful custody of any person including minors from the person entitled [Sec. 1]

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Actual violation before writ issues.

Limitations

Who may file

Note: Villavicencio v. Lukban (G.R. No. L-14639, 1919) on applicability of the writ in case of constructive restraint. May not be suspended except in cases of invasion or rebellion when public safety requires it [Sec. 15, Art. III, 1987 Const.]

By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf [Sec. 3]

a.

Where filed

SC or any member thereof, on any day and at any time b. CA or any member thereof in instances authorized by law

Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity Covers extralegal killings and enforced disappearances or threats thereof [Sec. 1]

Shall not diminish, increase or modify substantive rights [Sec. 23] Petition filed by the aggrieved party or by any qualified person or entity in the following order: a. Any member of the immediate family b. Any ascendant, descendant or collateral relative of the aggrieved within the 4th civil degree of affinity or consanguinity c. Any concerned citizen, organization, association or institution Filing by the aggrieved suspends the right of all others [Sec. 2] a.

SB, CA, SC, or any justice of such courts b. RTC of place where the threat, act, or omission was committed or any element occurred [Sec. 3]

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Involves the right to privacy in life, liberty or security violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party [Sec. 1]

Shall not diminish, increase or modify substantive rights [Sec. 23] Any aggrieved party may file a petition. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): a. Any member of the immediate family of the aggrieved b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity [Sec. 2] a. At the option of petitioner, RTC where: 1. Petitioner resides or 2. Respondent resides or

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Habeas corpus

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Amparo

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]

Habeas data 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]

If SC/CA issued, anywhere in Philippines.

Where enforceable

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

Anywhere in Philippines [Sec. 4]

Where returnable

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]

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 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]

Docket fees

Upon the final disposition of such proceedings the court or judge shall make

Petitioner shall be exempted from the payment of the docket and other lawful fees

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Anywhere in Philippines [Sec. 3]

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] None for indigent petitioner

U.P. LAW BOC

SPECIAL PROCEEDINGS

Habeas corpus

Amparo

such order as to costs as the case requires [Sec. 19]

Essential allegations/ Contents of petition

When proper

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 [Sec. 3]

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 depute 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,

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 May include a general prayer for other just and equitable reliefs [Sec. 5]

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]

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REMEDIAL LAW

Habeas data 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, 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]

U.P. LAW BOC

SPECIAL PROCEEDINGS

Habeas corpus 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

Respondent

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. 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]

REMEDIAL LAW

Amparo

Habeas data

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.

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 service shall apply [Sec. 8]

In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 9]

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 the return [Sec. 9]

Respondent files the return [Sec. 10]

Within 5 working days after service of the writ [Sec. 9]

Same as Amparo [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 and returned

When to file return

on the day specified in the writ, unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein. Officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof [Sec. 8] On the day specified on the writ [Sec. 8]

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U.P. LAW BOC

SPECIAL PROCEEDINGS

Habeas corpus

Contents of return

Formalities of return

Penalties for refusing to issue or serve OR for faulty return

REMEDIAL LAW

Amparo

When the person to be produced is imprisoned or restrained by an 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] Return or statement shall be signed and sworn to by the person who makes it if the 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

Within 5 working days after service of the writ, the respondent shall file a 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]

Habeas data a.

Lawful defenses such as national security, state secrets, privileged 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]

Respondent shall file a verified written return together with supporting affidavits [Sec. 9]

Respondent shall file a verified written return together with supporting affidavits [Sec. 10]

a.

a.

Contempt without prejudice to other disciplinary actions

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Contempt without prejudice to other disciplinary actions

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SPECIAL PROCEEDINGS

Habeas corpus

Amparo

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 made by or on behalf of the prisoner, refuses to deliver to the 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]

Is period of return extendable?

Is a general denial allowed? Defenses not pleaded

Effect of failure to file return

1. 2.

CoC who refuses to issue the writ after its allowance, or 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]

Habeas data 1.

2.

CoC who refuses to issue the writ after its allowance, or 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.

Yes, for justifiable reasons [Sec. 10]

Note: Motion for extension of time to file a return is a prohibited pleading [Sec. 11]

Note: Motion for extension of time to file a return is a prohibited pleading [Sec. 13]

Not allowed [Sec. 9]

Not allowed [Sec. 10]

Deemed waived if not raised in return [Sec. 10]

Court or justice shall proceed to hear the petition ex parte [Sec. 12]

Summary.

Nature of Hearing

REMEDIAL LAW

However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look Page 290 of 481

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]

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SPECIAL PROCEEDINGS

Habeas corpus

Amparo at possibility of obtaining stipulations and admissions from the parties. Hearing shall be from day to day until completed same priority as petitions for Habeas corpus [Sec. 13]

Date and time of hearing

As specified in the writ, not later than 7 days from the issuance of the writ [Sec. 6]

As specified in the writ [Sec. 8]

Prohibited pleadings

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]

Burden of proof/Standard of diligence

Clear and convincing evidence [Dizon v. Eduardo, G.R. No. L-59118 (1988)]

Presumption of official duty

Yes. Consonant with Sec. 13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

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 crossclaims 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 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]

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REMEDIAL LAW

Habeas data 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]

Substantial evidence required to prove the allegations in the petition [Sec. 16]

U.P. LAW BOC

SPECIAL PROCEEDINGS

Habeas corpus

Amparo

Interim reliefs

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]

Judgment

Within 10 days from the time the petition is submitted for decision [Sec. 18]

REMEDIAL LAW

Habeas data

5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19]

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 the SC under Rule 45 [Sec. 19]

Not precluded

Not precluded

Consolidation of actions

Consolidated with a criminal action filed subsequent to the petition [Sec. 23]

Consolidated with a criminal action filed subsequent to the petition [Sec. 21]

Effect of filing criminal action

No more separate petition shall be filed. Reliefs available by motion in the criminal case [Sec. 22]

Same as Amparo [Sec. 21]

Appeal Institution of separate actions

Within 48 hours from notice of the judgment of final order appealed [Sec. 39, B.P. 129]

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Q. Change of Name 1. Distinctions between the Rules [103, 108, R.A. 9048];

Administrative Corrections

[De Leon 537-540]

Rule 103

Scope

Change of full name or surname (substantial corrections)

Nature of proceedings

Judicial: hearing necessary

Who may file

A person desiring to change one’s name

Initiatory pleading

Signed and verified petition

Where to file

Coverage

RTC of province in which petitioner resided for 3 years prior to filing

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

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 Administrative: no hearing required 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 Sworn affidavit Local civil registry office of city or municipality where record being sought to be corrected or changed is kept Local civil registrar of place where interested party is presently residing or domiciled Philippine consulate a. Correction of 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

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Rule 108 Correction of substantial errors or cancellation of entries in Civil Registry Judicial: Hearing necessary; adversarial Any person interested in any act, event, order or decree concerning civil status of persons which has been recorded in civil register Verified petition

RTC of city or province where corresponding civil registry is located

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

U.P. LAW BOC

SPECIAL PROCEEDINGS

error or mistake in the entry

Procedure Filing of petition for change of name [Sec. 1]  Court by order fixes date and place of hearing [Sec. 3]  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. 5] 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. L20306 (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. L-27621 (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

REMEDIAL LAW

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

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 said aliases are contained in the body of the petition [Go Chiu Beng v. Republic, G.R. No. L-29574 (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. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 [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. b. c. d.

The name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce Change results as a legal consequence of legitimation The change will avoid confusion A sincere desire to adopt a Filipino name to erase signs of former alienage [Uy v. Republic, G.R. No. L-22712 (1965)]

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Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage [Ang Chay v. Republic, G.R. No. L-28507 (1970)] [Republic v. Hernandez, G.R. No. 117209 (1996)] 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 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)] e.

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. L-18008 (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)]

REMEDIAL LAW

A petition for cancellation of entries in a marriage contract may prosper when the respondent [petitioner below] was able to show by overwhelming evidence that no marriage took place and that she was not even aware of such marriage. To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. Respondent indeed sought, not the nullification of the marriage as there was no marriage to speak of, but the correction of the record of such marriage to reflect the truth as set forth by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no marriage to speak of [Republic v. Olaybar, G.R. No. 189538 (2014)] Note: Olaybar is a very rare exception. 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. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used. Thus, even 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 adversarial proceedings [Republic v. Kho, G.R. No. 170340 (2007), citing Republic v. Valencia, G.R. L-32181 (1986)] The presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented, as required under Secs. 24 and 25 of Rule 132 which provides that a writing or document may be proved as a public or official record of a foreign country by either (a) an official publication; or (b) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept; and (b) authenticated by the seal of his office [San Luis v. San Luis, G.R. Nos. 133743 and 134029 (2007)] The Rule of Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) does not apply in a petition

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to recognize a foreign judgment relating to the status of the marriage where one of the parties is a citizen of a foreign country. Divorce involves the dissolution of a marriage, but the recognition of a foreign divorce decree does not involve the extended procedure under A.M. No. 02-11-10-SC or the rules of ordinary trial. Thus, since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be made in a special proceeding for cancellation or correction of entries in the civil registry under Rule 108 [Fujiki v. Marinay, G.R. No. 196049 (2013)] The second paragraph of Art. 26 of the Family Code now covers even cases where it is the Filipino spouse who initiates the proceedings for divorce. When this Court recognized a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and property relation, it should not stop short in likewise acknowledging that one of the usual and necessary consequences of absolute divorce is the right to remarry. Indeed, there is no longer a mutual obligation to live together and observe fidelity. When the marriage tie is severed and ceased to exist, the civil status and the domestic relation of the former spouse change as both of them are freed from the marital bond [Republic v. Manalo, G.R. No. 221029 (2018)]

REMEDIAL LAW

R. Absentees 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. Since Roberto left no properties, there was no need to judicially declare him absent [In Re Petition for Declaration of Absence of Roberto L. Reyes, G.R. No. L32036 (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 REPRESENTATIVE

OF

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] Petition for declaration of absence and appointment of trustee or administrator 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

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Spouse present 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] a. b.

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] 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]

REMEDIAL LAW

S. Cancellation or Correction of Entries in the Civil Registry 1. Entries Subject To

Cancellation or Correction under Rule 108

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 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)]

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A petition for cancellation of entries in a marriage contract may prosper when the respondent [petitioner below] was able to show by overwhelming evidence that no marriage took place and that she was not even aware of such marriage. To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. Respondent indeed sought, not the nullification of the marriage as there was no marriage to speak of, but the correction of the record of such marriage to reflect the truth as set forth by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no marriage to speak of. [Republic v. Olaybar, G.R. No. 189538 (2014)] Note: Olaybar is a very rare exception. 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. 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.

REMEDIAL LAW

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, 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]

2. 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

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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 [Sec. 1] If the petition is granted The civil registrar general shall, within ten (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

REMEDIAL LAW

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)] 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

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[Sec. 4]

3. R.A. 9048 vis-à-vis Rule 103

and Rule 108

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 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)]

REMEDIAL LAW

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 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 NONETHELESS, whatever the reason for the change, correction or cancellation, one has the option to just go directly to the court via Rule 103 or Rule 108.

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)] SO, 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 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

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right to the properties of the estate, such that no heir may lay claim on a particular property. [Silverio v. Court of Appeals, G.R. No. 178933, (2009)].

T. Rule 109: Appeals in Special Proceedings What are the orders or judgements in Special Proceedings from which an 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. 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. f. Which is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing. The order of the intestate court for Nelly to vacate a portion of the estate property is only an interlocutory order that may not be the subject of an appeal. It is not a final determination of the case or of the issue of distribution of the shares of the heirs in the estate or their rights therein. It must be borne in mind that until the estate is partitioned, each heir only has an inchoate

From the probate court’s order allowing the will of Ferdinand Marcos and issuing letters testamentary to Imelda and Bongbong Marcos, the Republic should have appealed to the CA under S1(a) R109 instead of filing a petition for review on certiorari with the Supreme Court. [Republic v. Marcos, (2009)]. Order of probate court that certain properties should be included in the inventory is interlocutory and cannot be appealed under S1 R109. Remedy is certiorari under R65. [Aranas v Mercado, (2014)]. Period of appeal and how taken In special proceedings and other cases of separate or multiple appeals where a record on appeal is required, the appeal shall be taken within 30 days from notice by filing a notice of appeal and a record on appeal with the court from which the appeal is being taken. 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. Appeal from the RTC’s order granting a petition for change of name is perfected by filing a notice of appeal only. A record on appeal is not required since the case does not involve multiple or separate appeals where the trial court needs to retain the original record. [Republic v. Nishina, (2010)].

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VII. CRIMINAL PROCEDURE

a. Jurisdiction over Subject Matter This refers to the right to act or the power and authority to hear and determine a cause [Gomez v. Montalban, G.R. No. 174414 (2008)]

A. General Matters 1. Jurisdiction over Subject

Matter and Jurisdiction over Person of the Accused Distinguished; Territorial Jurisdiction

Definition

How acquired

Waiver of objection

Jurisdiction over subject matter Refers to the authority of the court to hear and decide the case

Conferred by law; cannot be conferred by the parties

Cannot be waived by the parties; even on appeal and even if the reviewing parties did not raise the issue of jurisdiction, the reviewing court is not precluded from ruling that the lower court had no jurisdiction over the case

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Jurisdiction over person of the accused Refers to the authority of the court over the person charged May be acquired by the arrest of the accused, or by consent of the accused, or by waiver of objections as when the accused enters his plea

Right to object may be waived; failure of the accused to object in time would constitute waiver

On jurisdiction over the subject matter, see Garcia v. Ferro Chemicals, Inc. [G.R. No. 172505 (2014)]; on jurisdiction over the person, see Santiago v. Vasquez [G.R. No. 99289-90 (1993)]

The averments in the complaint or information characterize the crime to be prosecuted [Brodeth v. People, G.R. No. 197849 (2017)], and the court before which the case must be tried [Avecilla v. People, G.R, No. 46370 (1992)] Jurisdiction cannot be fixed by the will of the parties; nor be acquired through waiver nor enlarged by the omission of the parties; nor conferred by any acquiescence of the court [Gomez-Castillo v. Commission on Elections, G.R. No. 187231 (2010)], or by mere administrative policy of any trial court [Cudia v. Court of Appeals, G.R. No. 110315 (1998)] Statute applicable Jurisdiction of a court to try a criminal action is determined by the law in force at the time of the institution of the action, and not the law in force at the time of the commission of the crime [People v. Lagon, G.R. No. 45815 (1990)] [NOTE: This rule refers only to remedial law and not substantive law.] Imposable penalty In determining whether or not the court has jurisdiction over an offense, we consider the penalty which may be imposed upon the accused for the charge in the complaint and not the actual penalty imposed after the trial [People v. Purisima, G. R. No. L40902 (1976)] Principle of adherence of jurisdiction General rule: Under the principle of adherence of jurisdiction or continuing jurisdiction, once a court acquires jurisdiction over a controversy, it shall continue to exercise such jurisdiction until the final determination of the case [Mendoza v. Comelec, G.R. No. 188308 (2009)] It is not affected by 1. A subsequent valid amendment of the information [People v. Chupeco, G.R. No. L-19568 (1964)]; or 2. A new law vesting jurisdiction over such proceedings in another tribunal [Palana v. People, G. R. No. 149995 (2007)]

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Exceptions: The succeeding statute 1. expressly provides, or 2. is construed to the effect that it is intended to operate to actions pending before its enactment [Palana v. People, G. R. No. 149995 (2007)]

b. Jurisdiction over the Person of the Accused The person charged with the offense must have been brought in to its forum for trial 1. Forcibly by warrant of arrest; or 2. Voluntary appearance or submission of the accused to the jurisdiction of the court [Antiporda v. Garchitorena, G.R. No. 133289 (1999), citing Arula v. Espino, G.R. No. L-28949 (1969)] Voluntary appearance of the accused accomplished by 1. Filing pleadings seeking affirmative relief 2. Giving bail [Santiago v. Vasquez, G.R. No. 99289-90 (1993)]

is

There is no voluntary appearance under item (a) above in case of special appearance to challenge the jurisdiction of the court over the person [Garcia v. Sandiganbayan, G.R. Nos. 170122 & 171381 (2009)], e.g. a motion to quash 1. a complaint on the ground of lack of jurisdiction over the person of the accused because failure to file would be a waiver of the defense of lack of jurisdiction over the person, or 2. the warrant of arrest because it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in the motion to quash a warrant of arrest [Miranda v. Tuliao, G.R. No. 158763 (2006)] Voluntary surrender as a mitigating circumstance When after the commission of the crime and the issuance of the warrant of arrest, the accused presented himself in the municipal building to post the bond for his temporary release, voluntary surrender is mitigating. The fact that the order of arrest had already been issued is no bar to the consideration of the circumstances because the law does not require that the surrender be prior to the order of arrest [Rivera v. CA, G.R. No. 125867 (2000), citing People v. Yecla (erroneously referred to as Yeda), G.R. No. 46612 (1939) and People v. Turalba, G.R. No. L-29118 (1974)]

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c. Territorial Jurisdiction The place where the criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction [Alfelor v. Intia G.R. No. L-27590 (1976)] This is to be determined by the facts alleged in the complaint or information as regards the place where the offense charged was committed [Buaya v. Polo, G.R. No. 167764 (2009)] For jurisdiction to be acquired by courts in criminal cases, the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of the limited territory [Uy v. CA, G.R. No. 119000 (1997)] One cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed [People v. Mercado, G.R. No. L-2760 (1950)]

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 a. Subject matter jurisdiction: the offense is one which the court is by law authorized to take cognizance of b. Territorial jurisdiction: the offense must have been committed within its territorial jurisdiction c. Jurisdiction over the person: the person charged with the offense must have been brought into its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. All three requisites must concur before a court can acquire jurisdiction to try a case [Antiporda v. Garchitorena, G.R. No. 133289 (1999), citing Arula v. Espino, G.R. No. L-28949 (1969)]

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3. Jurisdiction of Criminal

Courts

b.

Regular (civilian) courts MTC/MeTC/MCTC Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the MTC/MeTC/MCTC shall exercise exclusive original jurisdiction over: a. All violations of city or municipal ordinances committed within their respective territorial jurisdiction b. All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof c. Over offenses involving damage to property through criminal negligence [Sec. 32, B.P. 129, as amended by R.A. 7691] d. Concurrent original jurisdiction with RTCs over violations of R.A. 7610 (Child Abuse Act), as amended, 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] Note: SC Administrative Circular No. 09-94 (1994): 1. Item c: The criminal jurisdiction of the first-level courts under Sec. 32(2) of B.P. 129, as amended by R.A. 7691, has been increased to cover offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of the fine. As a consequence, the RTCs have no more original jurisdiction over offenses committed by public officers and employees in relation to their office, where the offense is punishable by more than 4 years and 2 months up to 6 years. 2. Item d: The provisions of Sec. 32(2) of B.P. 129 as amended by R.A. 7691, 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. a. However, in cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court in accordance with the original provisions of Sec. 32(2) of B.P. 129 which fixed original exclusive

c.

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jurisdiction of the first-level courts over offenses punishable with a fine of not more P4,000. If the amount of the fine exceeds P4,000, the RTC shall have jurisdiction, including offenses committed by public officers and employees in relation to their office However, this rule does not apply to offenses involving damage to property through criminal negligence which are under the exclusive original jurisdiction of the firstlevel courts, irrespective of the amount of the imposable fine.

RTC a. Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, EXCEPT those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter [Sec. 20, BP 129] b. Exclusive appellate jurisdiction over all cases decided by first-level courts within their territorial jurisdiction [Sec. 22, BP 129] c. Criminal cases commenced by information against the child upon determination of probable cause by the prosecutor [Sec. 33, R.A. 9344, as amended by R.A. 10630], in places where there are no family courts [Sec. 4(g), R.A. 9344] d. Exclusive jurisdiction over drug-related cases [Secs. 20, 61, 62, 90, R.A. 9165, see De Lima v. Guerrero, G.R. No. 229781 (2017)] e. Concurrent original jurisdiction with MTCs over violations of R.A. 7610 (Child Abuse Act), as amended, 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] f. Cases of violence against women and children under R.A. 9262 (Anti-VAWC Act), in the absence of the RTC designated as a Family Court in the place where the offense was committed g. Violations of intellectual property rights [A.M. No. 03-03-03-SC (2003); R.A. 8293] h. Money laundering cases EXCEPT those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan [Sec. 5, R.A. 9160, as amended] i. 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

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▪

transactions are of an amount not exceeding P1 million [Sec. 4, P.D. 1606, as amended by R.A. 10660]

Sandiganbayan a.

Violations of: 1. RA 3019 (Anti-Graft and Corrupt Practices Act) 2. RA 1379 (An Act Declaring Forfeiture In Favor of The State Any Property Found To Have Been Unlawfully Acquired by Public Officer or Employee) 3. Crimes mentioned in 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, whether in a permanent, acting or interim capacity, at the time of the commission of the offense • officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 [RA 6758]: ▪ 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 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 PNP 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

•

• •

• b.

Presidents, directors or trustees, or managers of GOCCs, state universities or educational institutions or foundations Members of Congress and officials thereof classified as “Grade 27” and up under the Compensation and Position Classification Act of 198 Members of the judiciary without prejudice to the provisions of the Constitution Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution All other national and local officials classified as “Grade 27”

Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees mentioned above in relation to their office. The following must concur: An offense is deemed committed in relation to his office when it cannot exist without the office 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)] In the absence of any allegation that the offense was committed in relation to the office of the accused or was necessarily connected with the discharge of their functions, the RTC and not the Sandiganbayan, has jurisdiction over the case [People v. Cawaling G.R. No. 117970 (1998)]

c.

Criminal cases filed pursuant to and in connection with EO 1, 2, 14, 14-A (1986) [Sec. 4, P.D. 1606, as amended by R.A. 10660]

Section 4(b) of P.D. 1606, as amended by R.A. 10660, is the general law on jurisdiction of the Sandiganbayan over crimes and offenses committed by high-ranking public officers in relation to their office. Sec. 90, R.A. 9165 is the special law excluding from the Sandiganbayan's jurisdiction violations of R.A. 9165 committed by such public officers. In the latter case, jurisdiction is vested upon the RTCs designated by the Supreme Court as drugs court, regardless of

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whether the violation of RA 9165 was committed in relation to the public officials' office [De Lima v. Guerrero, G.R. No. 229781 (2017)] 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 co-accused or victims are.

j.

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Where there is no prima facie case and a motion to quash on that ground has been denied k. 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)] l. When it is necessary 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)]

Exception: When the offense is service-oriented, 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)] Rationale: If at every turn investigation of a crime will be halted by a court order, the administration of criminal justice will meet with an undue setback. Indeed, the investigative power of the Fiscal may suffer such a tremendous shrinkage that it may end up in hollow sound rather than as a part and parcel of the machinery of criminal justice [Hernandez v. Albano, G.R. No. L-19272 (1967)] Exceptions a. To afford adequate protection to the constitutional rights of the accused b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits c. Where there is a prejudicial question which is sub judice d. Where acts of the officer are without or in excess of authority e. When the prosecution is under an invalid law, ordinance or regulation f. When double jeopardy is clearly apparent g. When court has no jurisdiction over the offense h. When it is a case of persecution rather than prosecution i. Where the charges are manifestly false and motivated by vengeance Page 307 of 481

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B. Prosecution of Offenses 1. Criminal Actions; How

Instituted

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 Those where the penalty prescribed by law is at least 4 years, 2 months and 1 day All other offenses [Sec. 1, Rule 112, as amended by A.M. No. 05-8-26-SC] a. The complaint or information is filed directly with the MTCs and MCTCs; or b. The complaint is filed with the The criminal action is office of the instituted by filing the prosecutor complaint with the [Sec. 1(b), Rule 110] appropriate officer for PI [Sec. 1(a), Rule In Manila and other 110] 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] There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription [People v. Pangilinan, G.R. No. 152662 (2012)] Falling under the authority of the lupon While the dispute is under mediation, conciliation or arbitration, the prescriptive periods for offenses and causes of action under existing laws shall be interrupted upon the filing of the complaint with the Punong

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Barangay [Sec. 410, LGC]

The prescriptive periods shall resume upon receipt by the complainant a. of the complaint or b. the certificate of repudiation or c. of the certification to file action issued by the Lupon or Pangkat Secretary Such interruption however shall not exceed 60 days from the filing of the complaint with the punong barangay [Sec. 410(c), LGC] What criminal cases require prior recourse to the 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: a. when there is no private offended party [Sec. 408(d), LGC] b. One party is the government or any subdivision thereof [408(a), LGC]; c. One party is a public officer or employee, and the dispute relates to the performance of his official functions [408(b), LGC]; d. Parties actually resides in different cities or municipalities, EXCEPT where such barangays adjoin each other AND the parties agree to amicable settlement by an appropriate lupon [408(f), LGC]; e. when the accused is under police custody or detention

2. Who May File; Crimes That

Cannot be Prosecuted De

Officio

General rule: No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or 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. Exception: CRIMES THAT PROSECUTED DE OFICIO

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Rationale This was imposed out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial [People v. Yparraguirre, G.R. No. 124391 (2000)] Crime

Adultery and concubinage

Who May File

Offended spouse

a.

Seduction, abduction, acts of lasciviousne ss

Offended party – includes minors, even independent ly of those in item b, except if incompetent or incapable b. Parents, grandparent s, guardian - right to

Conditions a. Must include both guilty parties, if both alive b. Must not have consente d to the offense or pardone d the offender s c. The marital relationship must still be subsistin g [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

c.

Defamation, which consists of imputation of any of the foregoing offenses

file the action shall be exclusive of all other persons and shall be exercised successively in this order State – If the offended party dies or becomes incapacitate d before she can file the complaint, and she has no known parents, grandparent s or guardian

Offended party

EVENTS SUBSEQUENT TO FILING a. Death of offended party Death after filing the complaint would not deprive the court of jurisdiction. The death of the offended party in private crimes is essential not for the maintenance of the action but solely for the initiation thereof [People v. Diego, G.R. No. 1626 (1937)] The causes for extinguishment of criminal liability are enumerated in Art. 89 of the Revised Penal Code. The death of the offended party is not one of them. Neither is such an event listed among the grounds of a motion to quash a criminal complaint or information as provided in Sec. 2, Rule 117. No Philippine decision was cited to support the view espoused by the defendant-appellee [People v. Bundalian, G.R. No. L-29985 (1982)] Note: Bundalian concerned a libel case, but Art. 89, RPC applies to crimes under the RPC in general.

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Pardon

Desistance by offended party Desistance of the victim’s complaining mother 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.

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Given after the commission of the crime but before the institution of the criminal action

Consent

Given before the commission of the crime

In adultery and concubinage

Pardon by offended party A pardon by the offended party does not extinguish criminal action except as provided in Art. 344 of the RPC; but civil liability with regard to the interest of the injured party is extinguished by his express waiver [Art. 23, RPC] Note: Subsequent Marriage below for a discussion of Art. 344, RPC. If there is more than one accused, the pardon must be extended to all offenders. Pardon for adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. The pardon can be express or implied [Ligtas v. CA, G.R. No. L-47498 (1987) The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted if the offender has been expressly pardoned by offended party or her parents, grandparents or guardian [Sec. 5, Rule 110] 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 [People v. de Guzman, [G.R. No. 185843 (2010)]

Pardon Refers to past acts

Consent 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

Either expressly or impliedly In this jurisdiction pardon for adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. The pardon can be express or in applied. Thus, when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their adulterous act this is a case of express pardon. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. However such consent or pardon cannot be implied when the offended party allows his wife to continue living in the conjugal home after her arrest only in order to take care of their children [Ligtas v. CA, G.R. No. L-47498 (1987), citing People v. Boca (CA), O.G. 2248]

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Express only But note: Ligtas v. CA [G.R. No. L-47498], where the SC stated, “However, such consent or pardon cannot be implied when the offended party allows his wife to continue living in the conjugal home after her arrest only in order to take care of their children." This statement suggests that consent may be implied if the circumstances were different. However, Ligtas concerned the issue of pardon, not consent.

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Pardon

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Consent

In Seduction, Abduction and Acts of Lasciviousness Must be expressly made d.

Offended party cannot consent to the crime

Subsequent marriage 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 coprincipals, accomplices, and accessories after the fact of the above-mentioned 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)] Note: The enumeration in Art. 344, RPC quoted above does not include: a. Adultery b. Concubinage, c. Defamation which consists in the imputation of concubinage, adultery, seduction, abduction, or acts of lasciviousness

Remedies if the prosecutor refuses to file an information a. Action for mandamus, in case of grave abuse of discretion; The moment the prosecutor finds one to be so liable or responsible for the offense, it becomes his inescapable duty to charge him therewith and to prosecute him for the same. In this moment, it becomes mandatory in character [Metropolitan Bank and Trust Company v. Reynaldo, G.R. No. 164538 (2010)] 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;

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d. Institute an administrative charge against the erring prosecutor; and 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 Actions, When

Enjoined

See When Injunction May Be Issued To Restrain Criminal Prosecution above.

4. Control of Prosecution All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. BUT 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. 02-2-07-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)] f. The prosecution of the civil liability has not been reserved or waived. 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

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elevation of the case to the RTC [OCA Circular No. 39-02, stating in toto Sec. 5, Rule 110, as amended by A.M. No. 02-2-07-SC] Regarding item d of the enumeration above, Note, however, this statement from Mobilia Products Inc. v. Umezawa, G.R. No. 149357 (2005), “It is necessary that the public prosecutor be present at the trial until the final termination of the case; otherwise, if he is absent, it cannot be gainsaid that the trial is under his supervision and control.” However, said statement was not necessary for the disposition of the case. 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] EXTENT OF PROSECUTOR’S CONTROL a. Prior to 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)]

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b. After filing The following matters are already within the control of the court and are no longer within the discretion of the prosecutor: 1. Suspension of arraignment [Sec 1, Rule 116 "Upon motion by proper party"] 2. Granting a reinvestigation; However, when the judge grants the reinvestigation, he may not choose the public prosecutor who will conduct such reinvestigation or preliminary investigation. [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] It is the prosecutor’s duty to proceed with the presentation of his evidence to the court to enable the court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted [Crespo v. Mogul, G.R. No. L-53373 (1987)] 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)] 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 intervention of fiscal Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it cannot be said that

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the prosecution of the case was under the control of the City Fiscal. 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)]

May be filed either in court or in the prosecutor’s office [Sec. 1, Rule 110]

It is necessary that the public prosecutor be present at the trial until the final termination of the case; otherwise, if he is absent, it cannot be gainsaid that the trial is under his supervision and control [Mobilia Products Inc. v. Umezawa, G.R. No. 149357 (2005)] Note that said statement was not necessary for the disposition of Mobilia, which involved a motion filed by counsel of complainant without the conformity of the public prosecutor.

Must be sworn hence, under oath [Sec. 3, Rule 110]

Note: OCA Circular No. 39-02 [stating in toto Sec. 5, Rule 110, as amended by A.M. No. 02-2-07-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.

5. Sufficiency of Complaint or

Information

Complaint A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated [Sec. 3, Rule 110] Information An information is an accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court [Sec. 4, Rule 110] Complaint Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated [Sec. 3, Rule 110]

Information Subscribed by the prosecutor [Sec. 4, Rule 110] (Indispensable requirement. Lack of authority of the officer signing it cannot be cured by silence, acquiescence or even express consent.)

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Filed with the court [Sec. 4, Rule 110] Requires no oath [Sec. 4, Rule 110] The fiscal filing the information is acting under the oath of his office.

CONTENTS OF A VALID INFORMATION A complaint or information is sufficient if it states a. The name and surname of the accused; or any appellation or nickname by which he is known or had been known b. The designation of the offense given by the statute c. The acts or omissions complained of as constituting the offense d. The name of the offended party e. The approximate date of the commission of the offense, and f. The place where the offense was committed When an offense is committed by more than one person, all of them shall be included in the complaint or information. [Sec. 6, Rule 110] The test for sufficiency of the complaint or information is 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)] When there is ambiguity in the accusation, the case must be resolved in favor of the accused [People v. Ng Pek, G.R. No. L-1895 (1948)] 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)] An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and

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participated in the trial [Frias v. People, G.R. No. 171437 (2007)]

been committed on a date as near as possible to the actual date of the commission.

Objections relating to the form of the complaint or information cannot be made for the first time on appeal. The accused should have moved 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 it is a material ingredient of the offense [Sec. 11, Rule 110]

NOTE: Exception would be if the defect consists in the lack of authority of the prosecutor who filed the information; such defect is jurisdictional.

a. Name of the accused 1.

2. 3.

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]

An information against all accused described as “John Does” is void, and an arrest warrant against them is also void [Pangandaman v. Casar, G.R. No. L-71782 (1988)]

b. 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: 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]

c. Date of commission General rule: It is not necessary to state in the complaint or information the precise date the offense was committed. The offense may be alleged to have

Allegation in an information of a date different from the one established during the trial would not, as a rule, be considered as an error fatal to the prosecution. Erroneous allegation is just deemed supplanted by the evidence presented during the trial or may even be corrected by a formal amendment of the information. Variance in the date of commission of the offense only becomes fatal when such 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. In this event, the defective allegation in the information is struck down for violating right of accused to be informed of specific charge [People v. Delfin, G.R. No. 201572 (2014)]

d. 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 [Sec. 12, Rule 110] Offenses against property If the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged [Sec. 12(a), Rule 110] 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 [Sec. 12(b), Rule 110] Offended party is a juridical person The complainant or offended party must state its name, or any name or designation by which it is known, or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law [Sec. 12(c), Rule 110]

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6. Designation of Offense The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it [Sec. 8, Rule 110] 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. 166794-96 (2009)] Allegations 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 of the offense is only the conclusion of the prosecutor [People v. Magdowa, G.R. No. 48457 (1941)] An 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)] The minute details of participation and cooperation on Illegal Drug Trading are matters of evidence that need not be specified in the Information but presented and threshed out during trial [De Lima v. Guerrero, G.R. No. 229781 (2017)]

7. Cause of the Accusation QUALIFYING AND AGGRAVATING CIRCUMSTANCES General rule: 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 and for the court to pronounce judgment [Sec. 9, Rule 110]

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Qualifying and aggravating circumstances must be alleged in the Information. Otherwise, they are not to be considered even if proven during the trial [Viray v. People, G.R. No. 205180 (2013)] 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)] If the aggravating circumstances were not alleged, they can still be basis for the awarding of exemplary damages. The basis, however, is no longer Art. 2230 of the NCC, but Art. 2229 (by way of example or correction for the public good) [People v. Dalisay, G.R. No. 188106 (2009)] The aggravating circumstance of habitual delinquency The Information must specify the following a. The commission of the previous crimes b. The last conviction or release [People v. Venus, G.R. No. 45141 (1936)] Rule on Negative Averments General rule: whenever a person accused of the commission of a crime 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), citing People v. San Juan, G.R. No. L-22944 (1968)], citing US v. Chan Toco, G.R. No. 3851 (1908)] 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 are omitted, the indictment, to be sufficient, must show that the person charged does not fall within the exemptions [People v. San Juan, G.R. No. L-22944 (1968), citing US v. Pompeya, G.R. No. L10255 (1915)] Where Complex Crime is charged The 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)]

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Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven [Gonzaludo v. People, G.R. No. 150910 (2006)]

Exception

Duplicity of the offense in an information or complaint means 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 are absorbed in the single crime of rebellion. The test is whether the act was done in furtherance of a political end [Enrile v. Salazar G.R. No. 92163 (1990)] b. Special complex crimes c. Continuous crimes 1. Plurality of acts performed separately during a period of time 2. Unity of penal provision violated 3. Unity of criminal intent [People v. Ledesma, G.R. No. L-41522 (1976)] d. Crimes susceptible of being committed in various modes In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense 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)]

f.

Remedy The filing of a motion to quash is the remedy in case of duplicity of offense in an information [Sec. 3(f), Rule 117] Objection to a complaint or information which charges more than one offense must be timely interposed before the accused enters his plea [Sec 1, Rule 117]

8. Duplicity of the Offense;

e.

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Crimes of which another offense is an ingredient [People v. Camerino, G.R. No. L-13484 (1960)] When a single act violates different statutes [Loney v. People, G.R. No. 152644 (2006)]

Failure to do so constitutes a waiver [People v. Tabio, G.R. No. 179477 (2008)] and the court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each offense [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)] KINDS OF AMENDMENT a. Formal amendment 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)] Examples 1. New allegations which relate only to the range of penalty that the court might impose in the event of conviction; 2. One which does not charge another offense distinct from that already charged; 3. Additional allegation which do not alter the prosecution’s theory of the case so as to surprise the accused or affect the form of defense he has or will assume; 4. One which does not adversely affect any substantial right of the accused, such as his right to invoke prescription [Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)] An amendment due to a supervening event is considered only a formal amendment as it did not

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adversely affect any substantial right of the appellant [People v. Degamo, G.R. No. 121211 (2003)] b. Substantial amendment 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)] Examples 1. Stating a different manner of committing the felony 2. Including conspiracy because such involves a change in the basic theory of the prosecution 3. Change in the date of commission of the offense that will be prejudicial to the accused Since the date of commission of the offense is not required with exactitude, the allegation in an information of a date of commission different from the one eventually established during the trial would not, as a rule, be considered as an error fatal to prosecution. In such cases, the erroneous allegation in the information may be corrected by a formal amendment in the information. The foregoing rule, however, is concededly not absolute. Variance in the date of commission of the offense as alleged in the information and as established in evidence becomes fatal when such 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. [People v. Opemia, G.R. No. L-7987 (1956)] An amendment that would change the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form [People v. Delfin, G.R. No. 201572 (2014), citing People v. Opemia, G.R. No. L-7987 (1956)] The test as to whether the amendment is merely formal is 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)]

REMEDIAL LAW

WHEN TO AMEND a. 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 The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order [Sec. 14, Rule 110] 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)] Granting without conceding that the information contains averments which constitute the elements of Direct Bribery or that more than one offence is charged or as in this case, possibly bribery and violation of R.A. 9165, still the prosecution has the authority to amend the information at any time before arraignment pursuant to Sec. 14, Rule 110 [De Lima v. Guerrero, G.R. No. 229781 (2017)] b. After plea and during trial Formal amendment Amendment as to form can only be made under two conditions: 1. With leave of court; and 2. It does not cause prejudice to the rights of the accused [Sec 14, Rule 110] General rule: Amendment as to substance at this stage of the case is proscribed [People v. Zulueta, G.R. No. L-4017 (1951)]

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Rationale 1. It violates the right to be informed of 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. "Substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy" [Tehankee v. Madayag, G.R. No. 103102, (1992)] Exception: Amendment may be allowed if it is beneficial to the accused, e.g. amending Information for murder after arraignment by deleting the qualifying circumstances and downgrading the offense to homicide [People v. Janairo, G.R. No. 129254 (2007)] SUBSTITUTION If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Sec. 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial [Sec. 14, Rule 110] Sec. 19, Rule 119 states that 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 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. 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]

REMEDIAL LAW

Amendment and Substitution Distinguished Amendment Substitution The same attempted, frustrated, Involves Applicability necessarily different includes or offense included offense Formal or Substantial Scope substantial changes changes Amendment before plea has Necessity of been entered Must be with leave of Can be leave of court court effected without leave of court When amendment is Another PI is Necessity of Only as to entailed and new PI and form, no need accused has to plea for another PI plead anew and retaking of plea The amended information refers to the Involves a same offense different charged in the offense which original does not Offense information or include those involved to an offense provided in the which is original charge; included in the cannot invoke original charge; double can invoke jeopardy double jeopardy The accused The accused could invoke cannot claim double double jeopardy if the jeopardy; new Presupposes information is that the new Double a substantial information jeopardy amendment involves a and it was different done after the offense which plea because does not such would include or is Refer to Part not included in the same

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offense the original charged or to charge. an offense necessarily includes or included [Teehankee Jr. v. Madayag, G.R. No. 103102, (1992)] Variance between Allegation and Proof Variance Consequence The accused will be When the offense proved convicted of the is LESS than the offense offense proved charged [Sec. 4, Rule 120] The accused will be When the offense proved convicted of the is GREATER than the offense charged offense charged [Sec. 4, Rule 120] The case should be When the offense proved dismissed and a is DIFFERENT and NOT new Information NECESSARILY should be filed, INCLUDED/INCLUDES charging the proper the offense charged offense. [Sec. 14, Rule 110]

duties, crimes against national security and the law of nations) Those committed on a railroad train, aircraft, or any other public or private vehicle in the court of its trip

Those committed on board a vessel in the course of its voyage

Piracy, which has no territorial limits

10. Venue of Criminal Actions General rule: In all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where (1) The offense was committed, or (2) Any of its essential ingredients occurred [Sec. 15(a), Rule 110] Unlike in civil cases, in criminal cases venue is jurisdictional [People v. Metropolitan Trial Court of Quezon City, Br. 32, G.R. No. 123263 (1996)]

Libel

The court has no jurisdiction to try an offense committed outside its territorial jurisdiction [People v. Pineda, G.R. No. 44205 (1993)] Exceptions: Crime Felonies under Art. 2, RPC (offense on board a PH ship or airship, forgery or counterfeiting of coins, public officers abroad in the exercise of their

REMEDIAL LAW

Venue

Proper court where criminal action was first filed [Sec. 15, Rule 110]

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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] 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] May be instituted anywhere [People v. Lol-lo and Saraw, G.R. No. 17958 (1922)] 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 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 For online libel, the same measure cannot be reasonably expected

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Cases filed under B.P. 22

Illegal recruitment cases (R.A. 8042 or Migrant Workers Act)

Violations of RA 10175 (Cybercrime Prevention Act of 2012)

In exceptional circumstances to ensure a fair trial and impartial inquiry

Transitory or continuing offenses

CRIMINAL PROCEDURE

when it pertains to defamatory material appearing on the Internet or on a website as there would be no way of determining the situs of its printing and first publication [Bonifacio v. RTC of Makati, G.R. No. 184800 (2010)] May be filed in the place where the check was dishonored or issued. In the case of a cross-check, in the place of the depositary or collecting bank [People v. Grospe, G.R. No. L-74053-54, (1988)] 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)] 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] 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] 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. L-74053 (1988)]

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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: The offended party may intervene by counsel in the prosecution of the offense [Sec. 16, Rule 110] but 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)]

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action has been reserved or waived. [Rule 120 (Sec 2), ROC]

C. Prosecution of Civil Action 1. Rule on Implied Institution

b. Reservation of right to file civil action

General rule: The civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action.

When reservation shall be made 1. Before the prosecution starts to present its evidence 2. Under circumstances affording the offended party a reasonable opportunity to make such reservation. [Sec. 1, Rule 111]

of Civil Action with Criminal Action

Exception: The civil action is not deemed so instituted if 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]

2. When Civil Action May

Proceed Independently

a. Independent civil actions 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] Actions under the Civil Code, specifically for quasidelict, 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 [Art. 32, 33, 34, 35 and 2176] remain separate, distinct, and independent of any criminal prosecution although based on the same act [Phil. Rabbit Bus Lines v. People, G.R. No. 147703 (2004); Sec. 3, Rule 111] Only a preponderance of evidence is required but 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 caused by a wrongful act or omission to be recovered from the accused by the offended party, if there is any, EXCEPT, when the enforcement of the civil liability by a separate civil

Instances where reservation to file the civil action separately shall not be 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]

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]

3. When Separate Civil Action

Is Suspended

a.

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 b. If the criminal action is filed after the civil action has already been instituted, the civil action shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered on the criminal action. c. The civil action may be consolidated with the criminal action in the court trying the criminal case, upon motion of the offended party and before judgment is rendered on the merits of the civil action. The evidence already adduced in the civil action will be automatically reproduced in the criminal action. [Sec. 1, Rule 111]

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Note: The 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)]

5. Prejudicial Question 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)]

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled [Sec. 2, Rule 111]

4. Effect of Death of the

Accused or Convict On Civil Action

Upon the death of the accused or convict, criminal liability is extinguished [Art. 89, RPC]

Before arraignment

After arraignment and during pendency of the criminal action

During appeal

After judgment

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] 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. If the civil action has been reserved and subsequently filed, the civil action shall proceed after substitution of parties. [Sec. 4, Rule 111] Civil and criminal liabilities are extinguished [People v. Alison, G.R. No. L-30612 (1983)] 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]

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Definition

Elements

Effect

Where filed

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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 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)] 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] Suspension of the criminal action [Sec. 6, Rule 111] It does not prescribe the dismissal of the criminal action [Yap v. Paras, G.R. No. 101236, (1992)] 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]

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A petition for suspension of the criminal action by reason of a prejudicial question in a civil action may be filed in a. the office of the prosecutor or the b. court conducting the PI

Application

When the criminal action has already been filed for trial, the petition shall be filed in the same criminal action at any time before the prosecution rests [Sec. 6, Rule 111] Sec. 6, Rule 111 of the 1985 Rules of Criminal Procedure plainly says that the suspension may be made only upon petition and not at the instance of the judge alone, and it also says suspension, and not dismissal [Yap v. Paras, G.R. No. No. 101236 (1992)]

Rationale

Example

Note: Both the 1985 Rules (involved in Yap) and the 2000 Rules refer to a petition for suspension. 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)] 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)]

Not a prejudicial question Although both are based on fraud, civil case for the revocation of a management contract did not affect the criminal cases for estafa for executing a chattel mortgage on personal property in favor of another without the consent of the previous mortgagee [Rojas v. People, G.R. No. L-22237 (1974)] The issue of the validity of the receipt was not determinative of the guilt or innocence for estafa

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because even if that receipt was annulled on the basis of fraud, duress or intimidation, the accused’s guilt could still be established when evidence can be shown that they had actually received the sum for the fishing boat but instead of purchasing one, they misappropriated and failed to return the money to him upon demand. But, it could have been a prejudicial question had the criminal case been for falsification of the same receipt involved in the civil action [Jimenez v. Averia, G.R. No. L-22759 (1968)] Where petition for suspension based upon prejudicial question may be filed A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests [Sec. 6, Rule 111] Prejudicial question where civil and administrative cases, but no criminal case, involved The actions involved being respectively civil (forcible entry) and administrative (before the Land Authority regarding the right to possession) in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two proceedings, stemming from the fact that the right of private respondents to eject petitioner from the disputed portion depends primarily on the resolution of the pending administrative case. Thus, the SC ruled that the more prudent course for the trial court to have taken is to hold the ejectment proceedings in abeyance until after a determination of the administrative case [Quiambao v. Osorio, G.R. No. L48157 (1988)] Prejudicial question where administrative and criminal cases, but no civil case, involved The case of San Miguel Properties, Inc. v. Perez [G.R. No. 166836 (2013)] involved an administrative case for specific performance before the HLURB and a criminal prosecution for violation of Sec. 25 of P.D. 957. San Miguel argued that the concept of a prejudicial question involves a civil action and a criminal action and there can be no prejudicial question to speak of because no civil action was pending. The SC said the HLURB case raises a prejudicial question that sufficed to suspend the criminal proceedings since the action before the

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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. No filing fees shall be required for actual damages. b. Where the amount of moral, exemplary, nominal, temperate (except actual) damages is specified in the complaint/information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. c. Where the amount of moral, exemplary, nominal, temperate damages 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] Exception: 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 – The offended party shall pay in full the filing fees based on the amount involved [See Sec. 20, Rule 141]

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D. Preliminary Investigation 1. Nature of Right It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Sec. 1, Rule 112, as amended by A.M. No. 05-8-26-SC] Preliminary Investigation is “merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits” and does not place the persons against whom it is taken in jeopardy [Paderanga v. Drilon, G.R. No. 96080 (1991)] It is an executive, not a judicial function. Such investigation is not part of the trial, hence, a full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a wellgrounded belief that an offense has been committed and that the accused is probably guilty thereof [Metropolitan Bank and Trust Company v. Tonda, G.R. No. 134436 (2000)] Right to preliminary investigation Neither the 1935 nor the 1973 Constitution requires the holding of a PI. 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.. L-25707 (1981)] Note: This doctrine is still applicable since the 1987 Constitution does not require a PI. The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accused’s claim to a PI would be to deprive him of the full measure of his right to due process [Sales v. Sandiganbayan, G.R. No. 143802 (2001)] 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. Mere failure of a

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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. L15231 (1960)] 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 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 waiver, whether express or implied, must be in a clear and unequivocal manner [Larranaga v. CA. G.R. No. 130644 (1998)] 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 demand that PI be conducted [Go v. CA, G.R. No. 101837 (1992)]

2. Purposes of Preliminary

Investigation

a.

To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty [Raro v. Sandiganbayan, G.R. No. 108431 (2000)] b. To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and

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expensive trials [Tandoc v. Resultan, G.R. No. 59241-44 (1989)]

3. Who May Conduct

Determination of Existence of Probable Cause

Probable cause Probable cause means the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted [Allado v. Diokno, G.R. No. 113630 (1994)] The quantum of evidence now required in PI is such evidence sufficient to “engender a well-founded 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; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof [Estrada v. Ombudsman, G.R. No. 212140 (2015)] The determination of probable cause during a PI or reinvestigation is recognized as an executive function exclusively of the prosecutor. A prosecutor cannot then be compelled by mandamus to file a case against an alleged criminal. The only exception is when such prosecutor acted with grave abuse of discretion amounting to grave abuse of discretion amounting to lack or excess of jurisdiction [Hegerty v. CA, 409 SCRA 285 (2003)] Hearsay evidence is admissible during PI [De Lima v. Guerrero, G.R. No. 229781 (2017), citing Estrada v. Ombudsman, G.R. No. 212140 (2015)] In general, the following may conduct the determination of existence of probable cause in a PI a. Provincial/city prosecutors and their assistants b. National and regional state prosecutors c. Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by A.M. No. 05-826-SC] d. Ombudsman (see below)

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JUDICIAL DETERMINATION EXECUTIVE DETERMINATION PROBABLE CAUSE

v. OF

a. Prosecutor The executive determination of probable cause is one made during the PI. It is a function that properly pertains to the public prosecutor who is given a broad range of discretion to determine whether probable cause exists for purposes of indictment. Such finding will not be disturbed by the court unless there is finding of grave abuse of discretion [Mendoza v. People, G.R. No. 197293 (2014)] The PI conducted by the fiscal is terminated upon the filing of the information in the proper court [Crespo v. Mogul, G.R. No. L-53373 (1987)] b. Court The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused [Sec. 2, Art. III, Constitution] Note: RTC judges have no power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3, 2005. c. COMELEC The COMELEC may conduct investigation as regards election offenses [Sec. 2(6), Art. IX-C, Constitution; Sec. 265, Omnibus Election Code] d. Ombudsman The Ombudsman and his deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof [Sec. 12, Art. XI, Constitution] Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within 5 days from notice thereof with the Office of the Ombudsman, or the proper Deputy

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Ombudsman as the case may be, with corresponding leave of court in cases where information has already been filed in court [Sec. 7. Rule II, Rules of Procedure of the Office of the Ombudsman] The Ombudsman is authorized to conduct PI and to prosecute all criminal cases involving public officers and employees, not only those 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)] Courts should not interfere with the Ombudsman’s investigatory power, exercised through the Special Prosecutor, except when the finding is tainted with GAD amounting to lack or excess of jurisdiction. On the other hand, if the Special Prosecutor files a motion to dismiss/motion for leave to file a motion to withdraw the information after reinvestigation, the resolution of such motion rests on the sound discretion of the anti-graft court [Fuentes v. Sandiganbayan, G.R. No. 164664 (2006)] 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. The filing of the information without first affording the accused his right to file a motion for reconsideration renders PI conducted in this case incomplete. The inevitable conclusion is that the accused was not only effectively denied the opportunity to file a motion for reconsideration of the Ombudsman’s final resolution but also deprived of his right to a full PI preparatory to the filing of the information against him [Sales v. Sandiganbayan, G.R. No. 143802 (2001)] Procedure for Preliminary Investigation Filing of the complaint, which a. States the respondent’s address b. Includes 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

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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. 05-826-SC]  Action of the investigating officer a. Within 10 days after the filing of the complaint, the investigating officer will either: 1. Dismiss, 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 [Sec. 3(b), Rule 112, as amended by A.M. No. 05-826-SC] 3. If the respondent cannot be subpoenaed, 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. 05-826-SC] b. Respondent has the right to examine the evidence submitted by complainant which he may not have been 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 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 counter-affidavit [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 counter-affidavits 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

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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. 05-8-26-SC]  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: During the conduct of PI, the prosecutor is under no duty to provide the respondent with the counter-affidavits of his/her co-respondents [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: 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. 05-8-26-SC]

5. Review Within 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.

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 Within 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 file the information by himself 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. [Sec. 4, Rule 112, as amended by A.M. No. 05-8-26SC] The Secretary of Justice (SOJ) may review resolutions, via petition for review to the SOJ, of his subordinates in criminal cases despite the information being filed in court [Community Rural Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909 (2005); see also DOJ Circ. No. 70] A motion for reconsideration may be filed against the SOJ’s resolution [DOJ Circ. No. 70 (2000)] The resolution of the Secretary of Justice may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction [Ching v. Sec. of Justice, G.R. No. 164317 (2006)] The DOJ resolution is appealable administratively before the Office of the President and the decision of

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the latter may be appealed before the CA pursuant to Rule 43 [De Ocampo v. Sec. of Justice, G.R. No. 147932 (2006)] Note: As provided under Memorandum Circular No. 58 (2003), no appeal from or petition 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)] Thus, in De Ocampo involving homicide in relation to Sec. 10(a), Art. VI of R.A. 7610 punishable by reclusion perpetua, appeal to the OP was available. However, in Angeles involving libel, appeal to the OP was not allowed. The Court of Appeals is clothed with jurisdiction to review the resolution issued by the Secretary of the DOJ through a petition for certiorari under Rule 65 … solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction [Argovan v. San Miguel Corporation, G.R. No. 188767 (2013)] “While they are correct in stating that the right to preliminary investigation is a substantive, not merely a procedural right, petitioners are wrong in arguing that the Information filed, without affording the respondent his right to file a motion for reconsideration of an adverse DOJ resolution, is fatally premature” [Aguinaldo and Perez v. Ventus and Joson, G.R. No. 176033 (2015)] The CA has jurisdiction to review the resolution issued by the Secretary of Justice through a petition for certiorari under Rule 65 albeit solely on the ground that the Secretary committed grave abuse of his discretion amounting to excess or lack of jurisdiction. Petitioners could have easily availed themselves of such recourse instead of directly assailing the same before the SC [Chong v. Dela Cruz, G.R. No. 184948 (2009)]

6. When Warrant of Arrest May

Issue

By the RTC a. Within 10 days from the filing of the complaint or information, the judge shall personally

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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 if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the PI or 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. 05-8-26SC] By the MTC The procedure for the issuance of a warrant of arrest by the judge shall be governed by Sec. 5(a) quoted above [Sec. 5(b), Rule 112, as amended by A.M. No. 05-8-26-SC] 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 in Section 5(b) quoted above, 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] The PI for the determination of a sufficient ground for the filing of the information is executive in nature. It is part of the prosecution's job [P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642 (2002)] 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)] NOTE: Trial judges determine probable cause in the exercise of their judicial functions. A trial judge’s finding of probable cause for the issuance of a search warrant is accorded respect by reviewing courts when

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the finding has substantial basis [Worldwide Web Corp. v. People, G.R. No. 161106 (2014)] The judge had no positive duty to first resolve the Motion to Quash 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)]

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. 05-8-26SC 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 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

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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. 05-8-26SC]

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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. To afford adequate protection to constitutional rights [Hernandez v. Albano, G.R. No. L-19272 (1967)] e. In proper cases, because the statute relied upon is unconstitutional, or was “held invalid” [Ladlad v. Velasco, G.R. No. 172070-72 (2007)]

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)] 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. 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)] 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] Page 330 of 481

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E. Arrest 3.

1. Arrest, How Made Arrest Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense [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

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)] 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

REMEDIAL LAW

arrested by a police officer or any other person of suitable age and discretion [Sec. 23, Rule 114] 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)]

a. In flagrante delicto 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] “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)] To constitute a valid in flagrante delicto arrest, the following requisites must concur 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); People v. Laguio, G.R. No. 128587 (2007)] “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)] The following are instances of this type of arrest without warrant 1. An arrest made after an entrapment does not require a warrant inasmuch as it is considered a

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valid warrantless arrest pursuant to Sec. 5(a), Rule 113 [Teodosio v. CA, G.R. No. 124346 (2004)] This is different from instigation, which means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him, and leads to acquittal [People v. Dansico, G.R. No. 178060 (2011)] When a person is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest [People v. de Lara, G.R. No. 94953 (1994)]

A buy-bust operation is a valid form of in flagrante delicto arrest. It is a valid form of entrapment [People v. Araneta, G.R. No. 191062 (2010)]

b. Hot pursuit arrest 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] Requisites: 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); 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. The phrase covers facts, or in the alternative, circumstances. Circumstances may pertain to events or actions within the actual perception, personal evaluation or observation of the police officer at the scene of the crime. Thus, even though the police officer has not seen someone actually fleeing, he could still make a warrantless arrest if, based on his personal evaluation of the circumstances at the scene of the crime, he could determine the existence of probable cause. However, the determination of probable cause and the gathering of facts and circumstances should be made immediately after the commission of the crime in order to comply with the

REMEDIAL LAW

element of immediacy [Pestilos v. Generoso, G.R. No. 182601 (2014)] Probable cause must be based on personal knowledge which means an actual belief or reasonable grounds of suspicion [Abelita III v. Doria, G.R. No. 170672 (2009)] The clincher in the element of “personal knowledge of facts or circumstances” is the required element of immediacy within which these facts or circumstances should be gathered (i.e. just after the commission of the crime). This required time element acts as a safeguard to ensure that the police officers have gathered the facts or perceived the circumstances within a very limited time frame, such that the chances of contamination of facts is minimal. It 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)] Note: 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 accordance with Sec. 7 of Rule 112 [Sec. 5, 2nd par., Rule 113] Sec. 7 of Rule 112 states that when a person is lawfully arrested without a warrant involving an offense which requires a PI, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. Inquest is defined as 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)] General rule: PI is required to be conducted before a complaint/information is filed for an offense where the penalty prescribed by law is 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]

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3. 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. 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]

4.

Remedy of a person arrested without a warrant: 1. BEFORE the complaint or information is filed, arrested person may ask for PI a. he must sign a waiver of the provisions of Article 125 of RPC, in the presence of his counsel; b. he may apply for bail; c. the investigation must be terminated within 15 days from its inception 2. AFTER the filing of the complaint but BEFORE arraignment, the accused may ask for PI within 5 days after he learns of the filing of the complaint or information [Sec. 6, Rule 112, as amended by A.M. No. 05-8-26SC]

5.

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)]

REMEDIAL LAW

If warrantless arrest is validly made, the Inquest officer asks the detained person if he desires to avail of a PI. If he does, he must execute a waiver of Art. 125, RPC, with the assistance of a lawyer and, in case of non-availability of a lawyer, a responsible person of his choice [Sec. 10, DOJ Circ. No. 61 (1993)] If detained person does not opt for a PI or refuses to execute the waiver, the Inquest officer determines the probable cause that the accused is probably guilty [Sec. 11, DOJ Circ. No. 61 (1993)] If there is probable cause, the Inquest officer prepares the complaint/information and forward it, together with the records of the case, to the City Prosecutor for appropriate action [Sec. 13, DOJ Circular No. 61 (1993)]

c. Arrest of escaped prisoner 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] 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] 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. L28519 (1968)] RULES ON ILLEGALITY OF ARREST

The inquest proceedings must be terminated within the period prescribed under the provisions of Art. 125, RPC. [Sec. 3, DOJ Circ. No. 61 (1993)]

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)]

Duty of inquest officer 1. Determine whether warrantless arrest is valid. [Sec. 8, DOJ Circ. No. 61 (1993)] 2. If warrantless arrest is improperly made, Inquest officer recommends to the City Prosecutor the release of the arrested person [Sec. 9, DOJ Circ. No. 61 (1993)]

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 [Zalameda v. People, G.R. No. 183656 (2009)]

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An accused may be estopped from assailing the legality of his arrest if he failed to move for the quashing of the Information against him before his arraignment. 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 [People v. Badilla, G.R. No. 218578 (2016)] 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 he raises the objection before he enters his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case [Sec. 26, Rule 114]

a.

The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt. b. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. c. In case of his failure to execute the warrant, he shall state the reasons therefor. [Sec. 4, Rule 113] 2.

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

3.

This duty 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]

4.

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]

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)] Note: In Sanchez v. Demitriou [G.R. No. 111771 (1993)], the Court held that the original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the RTC lawfully acquired jurisdiction over the person of the petitioner by virtue of a warrant of arrest … it issued against him …. It was belated, to be sure, but it was nonetheless legal. The issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect [Sanchez v. Demetriou, G.R. No. 111771 (1993)]

3. Method of Arrest a. By Officer with Warrant Duties of arresting officer 1. Execution of warrant

REMEDIAL LAW

This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment [Mallari v. CA, G.R. No. 11069 (1996)] 5.

The officer executing the warrant shall arrest the accused and deliver him to the nearest police station or jail without unnecessary delay [Sec. 3, Rule 113];

6.

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]

Rights of the arresting officer 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. he person to be arrested is or is reasonably believed to be in said building;

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b. He has announced his authority and purpose of entering therein; and c. He has requested and been denied admittance. [Sec. 11, Rule 113] To break out from the building/enclosure when necessary to liberate himself [Sec. 12, Rule 113]; 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]

b. 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]

c. By Private Person (Citizen’s Arrest) 1.

2.

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] 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]

4. Requisites of a Valid

Warrant of Arrest

Essential requisites The warrant must:

REMEDIAL LAW

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, he shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause: a. If he finds probable cause, he shall issue a warrant of arrest, or b. If on the basis thereof 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 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. 058-26-SC] Sec. 5(b), Rule 112, as amended by A.M. No. 05-8-26SC states that the procedure for the issuance of a warrant of arrest by the judge shall be governed by Sec. 5(a). (See Part D.6 of this (Criminal Procedure) reviewer.) Sec. 6 of Rule 112, as amended by A.M. No. 05-8-26SC states that when a person is lawfully arrested without a warrant involving an offense which requires a PI, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules.

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The court shall then proceed in the exercise of its original jurisdiction [Sec. 5(c), Rule 113] 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. 05-8-26-SC]

a. 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)]

Rule 112, as amended by A.M. No. 05-826-SC]

Nature

Purpose

Standard

therein has been committed by the person sought to be arrested [Baltazar v. People, G.R. No. 174016 (2008)]

The preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him in making the determination of probable cause for issuance of the warrant of arrest. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor’s certification which are material in assisting the Judge in making his determination [Baltazar v. People, G.R. No. 174016 (2008)]

b. Probable Cause of Prosecutor and Judge Distinguished Prosecutor Executive determination of PC [Mendoza v. People, G.R. No. 197293 (2014)] 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,

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Judge Judicial determination of PC [Sec. 2, Art. III, Constitution] 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 Page 336 of 481

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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] 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. Sadiganbayan, 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)] Note: The right to bail flows from the right to be presumed innocent. It is accorded to a person in the custody of the law who may be allowed provisional liberty upon filing of a security to guarantee his appearance before any court, as required under specified conditions. Before conviction, bail is either a matter of right or of discretion. Bail is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. Bail is a matter of discretion when it comes to cases penalized by reclusion perpetua, murder being of these cases. Bail may be granted in such cases if the evidence of guilt is not strong. [Tanog v. Balindog, G.R. No. 187464 (2015)] 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)]

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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]

2. When a Matter of Right;

Exceptions

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 The court shall not order the detention of a child in a jail pending trial or hearing of his/her case [Sec. 35, R.A. 9344] Children detained pending trial may be released on bail or recognizance as provided for under Secs. 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time [Sec. 36, R.A. 9344] 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]

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Recognizance Recognizance is a mode of securing the release of any person in custody or detention for the commission of an offense who is unable to post bail due to abject poverty [Sec. 1, R.A. 10389] 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 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 [See Part F.4 of this (Criminal Procedure) reviewer.] 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 also not available a.

After a judgment of conviction has become final;

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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)]

3. When a Matter of Discretion Upon conviction by the RTC of anoffense 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] 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.

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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 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.

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. L-65228 (1985)] Gacal v. Judge Infante [A.M. No. RTJ-04-1845 (2011)] involved an Information that charged the accused of murder but the public prosecutor recommended bail in the amount of P400,000. For this reason, the SC held, “The offense of murder is punishable by reclusion temporal in its maximum period to death (Art. 248, RPC). By reason of the penalty prescribed by law, murder is considered a capital offense and, grant of bail is a matter of discretion which can be exercised only by respondent judge after the evidence is submitted in a hearing. Hearing of the application for bail is absolutely indispensable before a judge can properly determine whether the prosecution’s evidence is weak or strong.” The SC later stated, “The fact that the public prosecutor recommended bail for Ancheta did not warrant dispensing with the hearing. The public prosecutor’s recommendation of bail was not material in deciding whether to conduct the mandatory hearing or not.”

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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 or 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 the Philippines, or otherwise unable to testify [Sec. 8, Rule 114] A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial) a. The hearing of the accused's motion for bail in offenses punishable by death, reclusion perpetua or life imprisonment shall be summary, with the prosecution bearing the burden of showing that the evidence of guilt is strong. The accused may at his option, if he wants the court to consider his evidence as well, submit in support of his motion the affidavits of his witnesses attesting to his innocence. b. At the hearing of the accused's motion for bail, the prosecution shall present its witnesses with the option of examining them on direct or adopting the affidavits they executed during the preliminary investigation as their direct testimonies. c. The court shall examine the witnesses on their direct testimonies or affidavits to ascertain if the evidence of guilt of the accused is strong. The court's questions need not follow any particular order and may shift from one witness to another. The court shall then allow counsels from both

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sides to examine the witnesses as well. The court shall afterwards hear the oral arguments of the parties on whether or not the evidence of guilt is strong. d. Within 48 hours after hearing, the court shall issue an order containing a brief summary of the evidence adduced before it, followed by its conclusion of whether or not the evidence of guilt is strong. Such conclusion shall not be regarded as a pre-judgment on the merits of the case that is to be determined only after a fullblown trial. [Sec. 6]

a. b. c. d. e. f. g. h. i.

Where application for bail is filed General rule: The application may be filed with the court where the case is pending.

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. To fix bail at an amount equivalent to the civil liability of which petitioner is charged is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court [Yap Jr. v. CA G.R. No. 141529 (2001)]

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 province, city/municipality other than where 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. 05-8-26SC] 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

Financial ability of the accused Nature and circumstances of the offense Penalty for the offense charged Character and reputation of the accused Age and health of the accused Weight of the evidence against the accused Probability of the accused appearing at the trial Forfeiture of other bail 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]

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 repudiates the same in a sworn statement or in open court as having been extracted through force or intimidation;

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c.

When accused is found to have previously escaped legal confinement, evaded sentence, or jumped bail; d. 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; e. 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 f. Accused committed the offense while on parole or under conditional pardon; g. 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]

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

REMEDIAL LAW

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] Judgment against the bondsmen cannot be entered unless such judgment is preceded by an order of forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so. An order of forfeiture is interlocutory and is different form the judgment on the bond which is issued if the accused was not produced within the 30-day period [Mendoza v. Alarma, G.R. No. 151970 (2008)] 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] In order to cancel a bail on the ground of surrender, the surrender must be voluntary. In this case, the accused was not surrendered, he was charged and arrested for another crime [Esteban v. Alhambra, G.R. No. 135012 (2004)] 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]

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9. Application not a Bar to

Objections on Illegal Arrest, Lack of or Irregular Preliminary Investigation

Bail is no longer a waiver of these objections [Leviste v. Alameda, G.R. No. 182677 (2011)]

REMEDIAL LAW

issuance of HDOs shall pertain only to criminal cases within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the MTC and all other cases. The reason lies in seeking the balance between the state's interest over the prosecution of the case considering the gravity of the offense involved and the individual's exercise of his right to travel [Genuino v. De Lima, G.R. No. 197930 (2018)]

Thus, provided that the accused raises them before entering his plea, 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 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]

10. Hold/Allow Departure

Order and Bureau of Immigration Watchlist

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending [Sec. 23, Rule 114] The accused may be prohibited from leaving the country during the pendency of his case [People v. Uy Tuising, G.R. No. 42118-20 (1935); Manotoc v. CA, G.R. No. L-62100 (1986)] A hold-departure order may be issued only in criminal cases within the exclusive jurisdiction of the RTCs. The judgment of acquittal or dismissal of the case shall include the cancellation of the HDO [SC Circ. No. 39-97] SC Circular 39-97 deals only with criminal cases pending in the RTC. As to those cases pending in the MTC as well as those under PI, the DOJ promulgated DOJ Circular No. 41 governing the issuance of HDO, Watchlist Orders, and Allow Departure Orders. HOWEVER, the SC has declared DOJ Circular No. 41 as unconstitutional. The Secretary of Justice has no power to issue HDOs and WLOs. The Page 342 of 481

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G. Arraignment and Plea 1. Arraignment and Plea; How

Made

Arraignment It is the stage where the 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 arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information [Sec. 1(a), Rule 116] Rationale The importance of arraignment 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)] Plea Pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him 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 oficio 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]

REMEDIAL LAW

b. Motion to suspend arraignment: upon motion by the proper party, the arraignment shall be suspended 1. Accused appears to be suffering from unsound mental condition which effectively renders him unable to fully 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)] Procedure of Arraignment The court shall issue an order directing the public prosecutor to submit the record of the PI to the branch COC 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:

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For a non-capital offense, the court may receive evidence to determine the penalty to be imposed [Sec. 4, Rule 116] 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 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] How made a. Before the court where the complaint or information has been filed or assigned for trial; b. In open court c. by the judge or clerk of court; d. by furnishing the accused with a copy of the complaint or information; e. Reading it in a language or dialect known to the accused; f. Asking the accused whether he pleads guilty or not guilty. g. The accused must be present and must personally enter his plea. h. Both arraignment and plea shall be made on record but failure to enter of record shall not affect the validity of the proceedings [Sec. 1(a) and (b), Rule 116] There can be no arraignment or plea in absentia. Under both the 1964 and 1985 Rules, a defendant must be present at the arraignment and must personally enter his plea [Nolasco v. Enrile, G.R. No. L68347 (1985)] The 2000 Rules contains the same requirement (See Part (7) of the enumeration above). 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)];

REMEDIAL LAW

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] 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 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; Part B(2), A.M. No. 03-1-09-SC] The presence of the accused is not only a personal right but also a public duty, irrespective of the gravity of the offense and the rank of the court. There can be no trial in absentia without first arraigning the accused; otherwise, the judgment is null and void [Riano 394, 2016 Ed., citing Taglay v. Daray, G.R. No. 164258 (2012)] Specific rules a. Trial in absentia may be conducted only after valid arraignment [Sec. 14(2), Art. III, Constitution] b. Accused must personally appear during arraignment and enter his plea; counsel cannot enter plea for the accused [Sec. 1[b], Rule 116] c. Accused is presumed to have been validly arraigned in the absence of proof to the contrary [see Sec. 3(m), Rule 131] d. Generally, judgment is void if accused has not been validly arraigned [Riano 394, 2016 Ed., citing Taglay v. Daray, G.R. No. 164258, (2012)] e. 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 amended information is mandatory [Teehankee v. Madayag, G.R. No. 103102 (1992)] The need for arraignment is imperative in an amended information or complaint. This, however, pertains

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only to substantial and not to formal amendments [Kummer v. People, G.R. No. 174461 (2013)] Whatever procedural infirmity in the arraignment of the accused was rectified when he was re-arraigned and entered a new plea. Accused did not question the procedural errors in the first arraignment and having failed to do so, he is deemed to have abandoned his right to question the same and waived the errors in procedure [People v. Magat, G.R. No. 130026 (2000)]

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] 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. L38626 (1975)] Plea of guilty is mitigating if it is made before prosecution starts to present evidence [Art. 13(7), RPC] Retaking of plea Accused did not fully comprehend the consequences of a plea of guilty, or even what crimes he was pleading guilty to. Hence, the necessity of a rearraignment and retaking of his plea [People v. Nuelan, G.R. No. 123075 (2001)] Plea of not guilty should be entered a. When the accused did not fully understand the meaning and consequences of his plea b. Where the information is insufficient to sustain conviction of the offense charged c. Where the information does not charge an offense, any conviction thereunder being void d. Where the court has no jurisdiction

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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 [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 TRIAL

ARRAIGNMENT

BUT

BEFORE

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. Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the pleas; and

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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.]

5. Searching Inquiry 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. 15551122 (2004)] The plea must be clear, definite and unconditional. It must be based on a free and informed judgment. The judge must ask whether the accused was assisted by counsel during custodial investigation and PI; ask questions on age, educational attainment and socioeconomic status; and ask the defense counsel whether or not he conferred with the accused [People v. Nadera, G.R. Nos. 181384-87 (2000)] A plea of guilt 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 3. Under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge’s intimidating robes.

REMEDIAL LAW

b. 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. c. Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. d. 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. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. e. 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. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. f. All questions posed to the accused should be in a language known and understood by the latter. g. 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] General rule: If the accused does not clearly and fully understand the nature of the offense charged, if he is not advised as to the meaning and effect of the technical language so often used in formal complaints and information in qualifying the acts constituting the offense, or if he does not clearly understand the

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consequences by way of a heavy and even a capital penalty flowing from his admission of his guilt of the crime in the precise technical manner and form in which it is charged, his plea of guilty should not be accepted and if accepted it should not be held to be sufficient to sustain a conviction [People v. De Ocampo Gonzaga, G.R. No. L-48373 (1984)]

1.

Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense

3.

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.

2.

REMEDIAL LAW

Delusion test, where insanity is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances; Irresistible impulse test, where the accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed. Right and wrong test, where a perverted condition of mental and mortal faculties afflicts the accused as to render him incapable of distinguishing between right and wrong.

In People v. Pascual [G.R. No. 95029 (1993)], there are two tests to determine insanity 1. Test of cognition, which requires complete deprivation of intelligence in committing the criminal act. It is the test adopted in this jurisdiction. 2. Test of volition, which requires a total deprivation of free will.

b. Existence of prejudicial question Rationale A prejudicial question would be determinative of guilt or innocence. [Ty-de Zuzuarregui v. Villarosa, G.R. No. 183788 (2010)]

7. Grounds for Suspension of

It may be raised during PI. If the information is filed in court, it may be raised as ground to suspend the arraignment [Sec. 6, Rule 111]

a. Unsound mental condition of the accused at the time of the arraignment

c. Pendency of petition for review

Arraignment

When the accused can neither comprehend the full import of the charge nor can he give an intelligent plea, the court shall order his mental examination and, if necessary, his confinement [People v. Estrada [G.R. No. 130487 (2000)] The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and defense counsel had called attention to [People v. Alcalde, G.R. Nos. 139225-28 (2002)] In People v. Dungo [G.R. No. 89420 (1991)], there are three major criteria to determine insanity

Upon motion by the proper party, the arraignment shall be suspended in case 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, Rule 116] Rationale This is to observe judicial courtesy and avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense. If petition for review is not resolved within 60 days, court may insist on the arraignment.

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With the arraignment of the accused, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same [Gandarosa v. Flores, G.R. No. 167910 (2007)]

d. Other pending incidents Such as 1. Motion to quash 2. Motion for inhibition, and 3. Motion for bill of particulars

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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 information: WON the facts alleged which are hypothetically admitted would establish the essential elements of the crime defined by law.

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)],

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] 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]

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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)]

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; 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)] 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: 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)]

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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] 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 test is whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense, as defined by law without considering matters aliunde [People v. Romualdez, G.R. No. 166510 (2008)] That the missing element may be proved during the trial or that the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People v. Asuncion, G.R. No. 80066 (1988)] The defect is not cured by a failure to move to quash or by a plea of guilty [Suy Sui v. People, G.R. No. L5278 (1953)] If a MTQ is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment [Sec. 4, Rule 117] 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 [DonioTeves v. Vamenta Jr., G.R. No. L-38308 (1984)] 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

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to the jurisdiction of the court [Sanchez v. Demetriou, G.R. No. L-11171-77 (1993)] When the objection is raised, the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead v. Argel, G.R. No. L-41958 (1982)] Officer who filed the information had no authority to do so Authority to file and prosecute criminal cases is vested in: 1. Prosecutor 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] The prosecutor who signed the information must have territorial jurisdiction to conduct PI of the offense [Cudia v. CA, G.R. No. 110315 (1998)] Note: The following may conduct preliminary investigations 1. Provincial or City Prosecutors and their assistants; 2. National and Regional State Prosecutors; and 3. Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by A.M. No. 05-8-26SC] No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy [Sec. 4, Rule 112] An information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman. For election offenses, it must be signed by the duly deputized prosecutors and legal officers of the COMELEC [Sec. 265, Art. XXII, Omnibus Election Code]

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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] Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. Garcia, G.R. No. 120093 (1997)] 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] More than one offense is charged 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 However, this ground is waivable. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of two or more separate offenses in the same information [People v. Villamor, G.R. No. 124441 (1998)] Criminal action or liability has been extinguished

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)]

When criminal liability is extinguished:

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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; 7. Pardon in private offenses [Art. 89, Revised Penal Code] Protection from prosecution under a statute of limitation is a substantive right. Where the statute fixes a period of limitation as to a prosecution for a particular offense, the limitation so fixed is jurisdictional, and the time within which the offense is committed is a jurisdictional fact, it being necessary that the indictment or information be actually filed within the time prescribed [People v. Sandiganbayan, G.R. No. 101724 (1992)] Contains averments that if true would constitute a legal excuse or justification

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: 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 Does not decide the case on the merits. Does not determine innocence or guilt Double jeopardy will not always attach

Acquittal Always based on the merits. Defendant’s guilt was not proven beyond reasonable doubt Double jeopardy always attaches

See Provisional Dismissal below.

Examples: 1. Justifying circumstances [Art. 11, RPC] 2. Exempting circumstances [Art. 12, RPC] 3. Absolutory causes

2. Distinguish Motion to

Quash from Demurrer to Evidence

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.

REMEDIAL LAW

Motion to quash

Double jeopardy See Double Jeopardy below.

When filed

Filed before entering plea [Sec. 1, Rule 117]

Basis for grant or denial

Does not go into the merits of the case

Grounds

Grounds are stated in Sec. 3 , Rule 117

Leave of court

Does not require a prior leave of

2. Dismissal without express consent 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

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Demurrer to evidence Filed after the prosecution has rested its case [Sec. 23, Rule 119] Based upon the insufficiency of the evidence adduced by the prosecution [Sec. 23, Rule 119] Ground is “insufficiency of evidence” to convict [Sec. 23, Rule 119] May be filed either with leave or without leave

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Effect of grant

Remedy

court [Sec. 1, Rule 117] Grant does not necessarily result in a dismissal (Court may order the filing of a new complaint or information) [Sec. 4, Rule 117]

If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies

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of court [Sec. 23, Rule 119] Grant is deemed an acquittal and would preclude the filing of another information or appeal by the prosecution The order denying the motion for leave to file a demurrer “shall not be reviewable by appeal or by certiorari before judgment” If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer is filed without leave, the accused waives the right to present evidence and submits the case for judgment [Sec. 23, Rule 119]

3. Effects of Sustaining the

2.

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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 i. The time specified in the order; or ii. 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]

c. Remedies of the prosecution 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. 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)]

Motion to Quash

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

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Order denying MTQ Interlocutory Not appealable absent a showing of GAD. If there is GAD, then file petition for certiorari Does not dispose of the case upon its merits

Proper remedy: appeal after the trial Consequence: Arraignment

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Order granting MTQ Final Order Immediately appealable but subject to rules on double jeopardy Disposes of the case upon its merits when the ground is the extinguishment of liability or double jeopardy Proper remedy: appeal the order Consequence: 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)] However, if the court in denying the motion to quash acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies [Lazarte v. Sandiganbayan, G.R. No. 180122 (2009); Javier v. Sandiganbayan, G.R. Nos.. 147026-27 (2009)]

4. Exception to the Rule that

Sustaining the Motion is Not a Bar to another Prosecution

General rule: Grant of the MTQ will not be a bar to another prosecution for the same offense 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]

5. Double Jeopardy The right against double jeopardy prohibits the prosecution for a crime of which he has been

REMEDIAL LAW

previously convicted or acquitted [Caes v. IAC, G.R. No. 74989-90 (1989)] RULE OF DOUBLE JEOPARDY Conditions a. When 1. an accused has been convicted or acquitted, or 2. the case against him dismissed or otherwise terminated without his express consent b. by a court of competent jurisdiction c. Upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and d. After the accused had pleaded to the charge, 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] KINDS OF DOUBLE JEOPARDY a. No person shall be put twice in jeopardy for the same offense [Sec. 21, Art. III, Constitution] 1. 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)] 2. Exceptions: • The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; • The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; • 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.

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[Sec 7, Rule 117] What: The offenses are penalized either by different sections of the same law or by different statutes. The essential elements of each must be examined. 4. Test: Whether or not evidence that proves one likewise proves the other, e.g. The mere fact that two offenses (slander by deed and slight physical injuries) may have taken place on the same occasion, or that one preceded the other, both proceeding from the same impulse, does not make the two a single act or a single offense for one is certainly distinguishable from the other. It is clear that two different acts were committed one preceding the other, resulting in two different offenses. As jeopardy prohibits making a person liable twice for the same act, it is not present in the case where the offender is being made liable for two distinct acts constituting two distinct offenses [People v. Ramos, G.R. No. L-15958 (1961)] When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the same act [Sec. 21, Art. III, Constitution] 1. The second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts [People v. Relova, G.R. No. L-45129 (1987)] 2. But: An offense penalized by ordinance is, by definition, different from an offense penalized under a statute. Hence, they would never constitute double jeopardy [People v. Relova, G.R. No. L-45129 (1987)]

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[People v. Espinosa, G.R. Nos. 153714-20 (2003)]

3.

b.

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

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)]

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 arraignment and the accused consented to a provisional dismissal. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party [Sec. 8, Rule 117] Grounds for provisional dismissal The delimitation of the grounds available in a MTQ suggests that a MTQ is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Sec. 3, Rule 117, then the appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground does not appear under Sec. 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Sec. 8 obtain [Los Baños v. Pedro, G.R. No. 173588 (2007)] When dismissal becomes permanent (Time-bar rule) 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

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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]

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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. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only [People v. Lacson, G.R. No. 149453 (2003)] What to file? Motion for permanent dismissal [Prof. Sanidad] Note: A provisional dismissal is not equivalent of an acquittal because the dismissal is with the express consent of the accused [Saldariega v. Panganiban, G.R. Nos. 211933 & 211690 (2015)] 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 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 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 Page 355 of 481

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I. Pre-Trial

Exception: A shorter period may be provided by special laws or SC circulars [Sec. 1, Rule 118]

Its main objective is to achieve an expeditious resolution of the case.

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]

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]

1. Matters to Be Considered

During Pre-Trial

Coverage In 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.

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 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 This is no longer prohibited in criminal cases [People v. Hernandez, G.R. No. 108028 (1996)] However, in a case of rape with the allegation that the victim is below 12 years of age which qualifies said crime and increases its penalty to death, nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. 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)]

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Marking for identification of evidence 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. L-80778 (1989)] Role of the judge 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]

If this is not followed, the admissions cannot be used against the accused (i.e., inadmissible in evidence) [Item I-B[8], A.M. No. 03-1-09-SC (2004)] The constitutional right to present evidence is waived expressly. The accused must have voluntarily waived his right to present evidence and with full comprehension. [Rivera v. People, G.R. No. 163996 (2005)]

4. Non-Appearance during

Pre-Trial

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 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.

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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] Note: The accused is not included because his constitutional right to remain silent may be violated. 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 pre-trial [People v. Judge Tac-An, G.R. No. 148000 (2003)]

Exception: Agreements not covering matters referred to in Sec. 1, Rule 118, need not be so approved [Item B.8, A.M. No. 03-1-09-SC]

5. Pre-Trial Order

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)])

Issuance The pre-trial order is: a. Issued by the trial judge; b. Within 10 days after the termination of the pretrial pre-trial [Item B.10, A.M. No. 03-1-09-SC]

Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally; he must assume the consequences of the disadvantage [Bayas v. Sandiganbayan, G.R. No. 143689-91 (2002)]

3. Pre-Trial Agreement 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]

Judgment of acquittal based on pre-trial despite disputed documents and issues of fact amounts to grave error and renders the judgment void [People v. Santiago, G.R. No. L-80778 (1989)] Content a. Actions taken b. Facts stipulated c. Evidence marked [Sec. 4, Rule 118] d. Admissions made; e. The number of witnesses to be presented; and f. The schedule of trial [Item B.10, A.M. No. 03-1-09-SC]

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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 pre-trial order in civil cases must be made before the trial. No such limitation is provided for in criminal cases.

6. Referral of Some Cases for

Court-Annexed Mediation and Judicial Dispute Resolution

After the arraignment, the court shall forthwith set the pre-trial conference within 30 days from the date of arraignment, and issue an order: a. Requiring the private offended party to appear thereat for purposes of plea-bargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence; b. Referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and c. Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available. [Item B.2, A.M. No. 03-1-09-SC]

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J. Trial 1. Instances When Presence of

Accused is Required by Law

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 proceedings, from arraignment to promulgation of the judgment [Sec. 1(c), Rule 115] Note: The presence of the accused is required in the following cases: 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 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] Prosecution may require the presence of the accused for the purposes of identification by its witnesses [Carredo v. People, G.R. No. 77542, March 19, 1990] 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 a. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. b. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained [Sec. 1(c), Rule 115] When trial should be commenced Pursuant to Sec. 8(d) of the Guidelines for Decongesting Holding Jails by Enforcing the Rights of the Accused Persons to Bail and to Speedy Trial [A.M. No. 12-11-2 SC], trial shall be set not later than

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thirty (30) days from the termination of pre-trial conference.

2. Requisites Before Trial Can

be Suspended on Account of Absence of Witness

Requisites a. Absence or unavailability 1. “Absent” means that his whereabouts are unknown or cannot be determined by due diligence 2. “Unavailable” means that his whereabouts are known but his presence for trial cannot be obtained by due diligence b. of an essential witness [Sec. 3(b), Rule 119] “Essential” means indispensable, necessary, or important in the highest degree [Riano 530, 2011 Updated Ed., citing 5 Black’s Law Dictionary 490] 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] Private counsel for the accused, the public attorney, or the prosecutor who knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial, may be punished by the court as follows a. by imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding ₱20,000.00; b. by imposing on any appointed counsel de officio, public attorney, or prosecutor a fine not exceeding ₱5.000.00; and c. by denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding 30 days The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under the Rules [Sec. 8, Rule 119] Conditional examination a. A witness for the prosecution may forthwith be conditionally examined before the court where the case is pending when it satisfactorily appears that he

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1.

Is too sick or infirm to appear at the trial as directed by the court, or 2. Has to leave the Philippines with no definite date of returning. b. Such examination, shall be conducted in the same manner as an examination at the trial 1. In the presence of the accused, or 2. In his absence after reasonable notice to attend the examination has been served on him c. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. [Sec. 15, Rule 119] Remedy to secure appearance of a material witness a. When the court is satisfied, upon 1. proof or 2. oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. b. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken [Sec. 14, Rule 119]

3. Trial in Absentia Requisites 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)] This is to speed up disposition of cases [People v. Agbulo, G.R. No. 73875 (1993)] Order of Trial a. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. b. The accused may present evidence to prove his defense and damages, if any, arising, from the issuance of a provisional remedy in the case. c. The prosecution may present rebuttal evidence unless the court, in furtherance of justice, permits it to present additional evidence bearing upon the main issue.

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d. The defense may present sur-rebuttal evidence unless the court, in furtherance of justice, permits it to present additional evidence bearing upon the main issue. e. Upon admission of evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda [Sec. 11(a) to (d), Rule 119] Modification of order of trial; reverse trial When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified [Sec. 11(e), Rule 119]

4. Remedy When Accused is

Not Brought to Trial within the Prescribed Period

On motion of the accused, the information may be dismissed on the ground of denial of his right to speedy trial if the accused is not brought to trial within the time limit required by a. Sec. 1(g), Rule 116; and b. Sec. 1, as extended by Section 6 of Rule 119. [Sec. 9, Rule 119] Sec. 1(g), Rule 116: Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. Sec. 1, Rule 119: After a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. The trial shall commence within 30 days from receipt of the pre-trial order. Sec. 6, Rule 119: Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be 180 days. For the second twelve-month period, the time limit shall be 120 days, and for the third twelve-month period, the time limit shall be 80 days.

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Factors to consider 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)] 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] 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. c. The dismissal shall be subject to the rules on double jeopardy. [Sec. 9, Rule 119] 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]

5. Requisites for Discharge of

Accused to Become a State Witness

Requisites a. Two or more persons are jointly charged with the commission of any offense. b. Upon motion of the prosecution before resting its case c. After requiring the prosecution 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 of the following: 1. Absolute necessity for the testimony of the accused whose discharge is requested

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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)];

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2.

There is no other direct evidence available for the proper prosecution of the offense, except the testimony of the said accused 3. The testimony can be substantially corroborated in its material points 4. The accused does not appear to be the most guilty 5. The accused has not, at any time, been convicted of any offense involving moral turpitude [Sec. 17, Rule 119] e. Petition for discharge is filed before the defense has offered its evidence [People v. Aniñon, G.R. No. L-39083 (1988)] Discharge of a co-accused It is the duty of the prosecutor to include all the accused in the complaint/information. He may ask the court to discharge one of them after complying with the conditions prescribed by law. This applies only when the information has already been filed in court. Thus, even the state witness is included as accused prior to discharge. While all the accused may be given the same penalty by reason of conspiracy, one may be considered the least guilty if we take into account his degree of participation in the perpetration of the offense [People v. Ocimar, G.R. No. 94555 (1992)]

6. Effects of Discharge of

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Subsequent amendment of the information does not affect discharge [People v. Taruc, G.R. No. L-14010 (1962)] Notes: a. Evidence adduced in support of the discharge shall automatically form part of the trial. b. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. [Sec. 18, Rule 119]

7. Demurrer to Evidence It is defined as “an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue” [Pasag v. Parocha, G.R. No. 155483 (2007), citing Black’s Law Dictionary] General rule: An order granting the accused’s demurrer to evidence amounts to an acquittal [Riano 491-492, 2016 Ed., citing People v. Go, G.R. No. 191015 (2014)] Exception: When there is a finding that there was grave abuse of discretion on the part of the trial court in dismissing a criminal case by granting the accused’s demurrer to evidence [Hon. Mupas v. People, G.R. No. 189365 (2011)]

Accused as State Witness

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)]

General rule: The order of discharge shall: a. Amount to an acquittal of the discharged accused; b. Bar future prosecutions for the same offense

Rationale This is to prevent the filing of demurrer based on frivolous and flimsy grounds.

Exception: If the accused fails/refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge, these effects do not set in. [Sec. 18, Rule 119] Any error in asking for and in granting the discharge cannot deprive the one discharged of the acquittal and the constitutional guaranty against double jeopardy [People v. Verceles, G.R. No. 130650 (2002)] Conviction of the accused against whom discharged state witness testified is not required.

How initiated a. by the court motu proprio, after giving the prosecution the opportunity to be heard; or b. Upon demurrer to evidence filed by the accused: 1. With leave of court; 2. Without leave of court [Sec. 23, Rule 119] Motion for leave to file demurrer a. It must specifically state its grounds. b. It must be filed within a non-extendible period of 5 days after the prosecution rests its case (i.e. after the court shall have ruled on the prosecution’s formal offer). Prosecution may then oppose within a non-extendible period of 5 days from receipt.

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c.

If leave of court is granted, the demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose the demurrer within a similar period [Sec. 23, Rule 119]

files motion with reservation to present evidence in case motion is denied)

resolution until decision is rendered on the other accused 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 co-accused, then the demurrer is deemed resolved

Demurrer in CIVIL CASE Anchored upon the failure of the plaintiff to show that upon the facts and the law, he is entitled to relief [Sec. 1 Rule 33] Requires prior leave of court relief [Sec. 1, Rule 33]

Demurrer in CRIMINAL CASE

Effect 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)] Sufficient evidence for frustrating a demurrer is evidence that proves: a. Commission; and b. Precise degree of participation [Singian, Jr.v. Sandiganbayan, G.R. Nos.. 195011-19 (2013)] Test: Whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt [Riano] 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]; c. It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People, G.R. No. 121422 (1999)] Right of the accused to present evidence after demurrer is denied Filed with leave Filed without leave of court of court May adduce evidence Waives the right to in his defense [Sec. 23, present evidence [Sec. Rule 119] 23, Rule 119] Purpose is to determine Submits the case for whether or not the judgment on the basis demurrer was filed of the evidence for the merely to stall the prosecution proceedings Implied leave of court If there are 2 or more is no longer sufficient accused and only one and prevents accused presents a demurrer from presenting without leave of court, evidence (e.g. accused the court may defer

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When demurrer is denied, defendant does not lose his right to present his evidence

Predicated upon prosecution’s insufficiency of evidence [Sec. 23, Rule 119] May be filed with or without leave of court [Sec. 23, Rule 119] Defense may present evidence upon denial of demurrer if the Defense filed the demurrer with leave of court. When without leave of court, demurrer was denied, defense/accused waives his right to present evidence and submits the case for judgment on the basis of evidence offered by the prosecution.

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

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

The court may, on its own initiative, dismiss the action after giving

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moving for the dismissal of the case. The court does not so on its own inititiative [Riano 498, 2016 Ed.]

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the prosecution an opportunity to be heard.

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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 Written in the official language If given verbally, it is incomplete [People v. Catolico, G.R. No. L-31260 (1972)] a. Personally and directly prepared by the judge b. Signed by the judge c. 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. 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)] The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular, especially when the evidence on record is sufficient to support its conclusion [People v. Alfredo, G.R. No. 188560 (2010)]

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General rule: The defendant can be convicted only of the crime with which he is charged [Riano 504, 2016 Ed.]

2. Contents of Judgment a. Conviction

The judgment of conviction shall state: 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] The penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it. Proof beyond reasonable doubt It is that degree of proof which produces conviction in an unprejudiced mind [People v. Bacalzo, G.R. No. 89811 (1991)] Conviction of the accused must rest, not on the weakness of the defense, but on the strength of the prosecution. The burden to prove guilt beyond reasonable doubt is on the prosecution [Boac v. People, G.R. No. 180597 (2008)] Judgment for two or more offenses Also known as duplicitous information [Prof. Sanidad]

complaint

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or

When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense [Sec. 3, Rule 120] Variance between allegation and proof Also known as the Variance Doctrine [Riano 503, 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: When there is variance between the offense charge in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved [Sec. 4, Rule 120] 1. The accused can be convicted of an offense only when it is both charged and proven. 2. The mere fact that the evidence presented would indicate that a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information [People v. Ocaya, G.R. No. L-47448 (1978)] Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense. When an offense includes or is included in another 1. An offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter. Examples: Murder includes homicide; Serious physical injuries include less serious or slight physical injuries; Robbery includes theft [Riano] 2.

An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter [Sec. 5, Rule 120]

Examples: Less serious physical injuries are included in serious physical injuries; Acts of lasciviousness are included in rape; Theft is included in robbery [Riano] The right to be informed of the charges has not been violated because where an accused is charged with a

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specific crime, he is duly informed also of lesser crimes/offenses included therein [People v. Noque, G.R. No. 175319 (2010)] 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)]

2.

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may deny the award of civil damages expressly or impliedly by being silent on the matter. The losing party may appeal the ruling on the civil liability, as in any other ordinary appeal, in his name and not in the name of the People.

The judge acquitting an accused cannot punish him at the same time.

b. Acquittal

General rule: The court has authority to express disapproval of certain acts even if judgment is for 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.

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.

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]

Instances of Promulgation of Judgment in Absentia

Acquittal Terminates the case Decision on the merits based on a finding that the accused is not guilty

3. Promulgation of Judgment;

IN GENERAL

Dismissal Not on the merits but no finding that accused is not guilty

Reasonable doubt is doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt [People v. Nito, G.R. No. 70305 (1993)] Acquittal based on failure to prove guilt beyond reasonable doubt does not extinguish the civil liability arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts, which can be proven by a lower quantum of evidence. Thus, it does not bar a separate civil action based on quasi-delict [Lontoc v. MD Transit, G.R. No. L-48949 (1988)] The court may hold the accused civilly liable even when it acquits him. 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

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)] Notice for promulgation The proper clerk of court shall give notice to the accused personally or through his bondsman or

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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]

Sin perjuicio judgment

It is a judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. This practice is discouraged by the courts [Dizon v. Lopez, A.M. No. RTJ-96-1338 (1997)] This is a practice which should not be followed and cannot be looked upon with favor [Director of Lands v. Sanz, G.R. No. 21183 (1923)] PROMULGATION IN CERTAIN CIRCUMSTANCES

c.

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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

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

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)]

4. When Does Judgment

Become Final

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] 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. 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, 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 copy at the accused’s last known address or through counsel [Sec. 6, Rule 120]

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, Except: where the death penalty is imposed [Sec. 7, Rule 120] Judgment also becomes final when judgment is an acquittal [People v. Sandiganbayan, G.R. No. 164577 (2010)] 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. L-9159 (1957)]

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accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment [Estino v. People, G.R. No. 163957-58 (2007)]

L. New Trial or Reconsideration 1. Grounds for New Trial a.

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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 [Ceniza-Manantan 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 of the accused. [Aguilar v. Court of Appeals, G.R. No. 114282 (1995)] 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)]

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

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)] Requisites 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 (2) above [US v. Torrente, G.R. No. 1001 (1922)] It must be of weighty influence and will affect the result of the trial [People v. Alfaro, G.R. Nos. 13674243 (2003)] 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. 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]

The court shall grant a new trial when new and material evidence has been discovered which the Page 367 of 481

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4. Effects of Granting 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]

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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 quasijudicial 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)]

Other effects of granting new trial or reconsideration depending on ground Action of the Ground Effect court All proceedings and evidence affected shall Errors of law be set aside and The court will or taken anew. allow irregularities If error or introduction of committed irregularity goes additional during the into the evidence in the trial jurisdiction, the interest of entire justice. proceeding is void and must be set aside. Evidence already adduced shall stand and the newlyThe court will discovered and allow Newlysuch other introduction of discovered evidence shall other such evidence be taken and evidence in the considered interest of together with justice. the evidence already in the record. [Sec. 6, Rule 121]

5. Application of 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 Page 368 of 481

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M. 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

MTC/MeTC/MCTC RTC or MTC/MeTC/ MCTC (if it is government dutyrelated, i.e., filed under E.O. 1, 2, 4 and 14-A) RTC (if it involves questions of fact and of law)

Appeal to RTC [Sec. 2(c), Rule 122] Sandiganbayan [Sec. 4 (c) PD 1606 as amended by RA 8249]

CA CA (notice of appeal)

Where the RTC imposed the penalty of reclusion perpetua or life imprisonment

Where the RTC imposed the penalty of death

RTC If it involves questions of law only

If the CA imposes reclusion perpetua or life imprisonment, it will render and enter judgment. The subsequent appeal to the SC is by notice of appeal [Sec. 3(a)(c), Rule 122; People v. Mateo, G.R. No. 147678 (2004)] CA (automatic review) If CA imposes death, it will render judgment but will not enter, and will certify the case to the SC for review [Sec. 3(d) and 10 , Rule 122 ] SC

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If it involves constitutionality or validity of any treaty/ law/ordinance/EO/ regulation or the jurisdiction of the inferior court In criminal cases involving offenses for which the penalty imposed is death or life imprisonment Other offenses, which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense CA [Sec. 2(c), Rule 122] or Sandiganbayan

SC [Sec. 2(c), 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

Appeal to

MTC/MeTC /MCTC

RTC

RTC (original jurisdiction)

CA

RTC (appellate jurisdiction)

CA Appeal to the SC in cases

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Mode Filing of notice of appeal with the court which rendered the order appealed from and serving a copy thereof to the adverse party Petition for review (Rule 42) Filing of notice of appeal with

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where the penalty imposed by the RTC is death, reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed. All other appeal to the SC

the court which rendered the order appealed from and serving a copy thereof to the adverse party (Except when the penalty imposed is death as such is subject to automatic review)

Petition for review on certiorari (Rule 45)

[Sec. 3, Rule 122] 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 When appeal to be taken Within 15 days from promulgation of the judgment or from notice of the final order appealed from.

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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 served upon the accused or his counsel. [Sec. 6, Rule 122]  Transmission of record to RTC Within 5 days from perfection of the appeal, the COC shall transmit the original record to the appropriate RTC [Sec. 9(a), Rule 122]  Notification of parties Upon receipt of the complete record, TSN and evidence of the case, the RTC COC shall notify the parties of such fact [Sec. 9(b), Rule 122]  Submission of memoranda/briefs Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by the RTC to do so [Sec. 9(c), Rule 122]  Decision After submission of such memoranda/briefs or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed [Sec. 9(c), Rule 122] 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] Offenses falling under the jurisdiction of the MTC/MCTC Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor’s office [Salcedo v. Nobles-Bans, G.R. No. L-67540 (1985)] Offenses falling under the jurisdiction of MeTC In Metro Manila and other chartered cities, criminal cases shall be commenced only by information; thus,

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the complaint may be filed only with the office of the City Prosecutor [Sec. 1(b), Rule 110]

is filed before the expiration of the time sought to be extended [Sec. 5, Rule 124]

If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information [Salcedo v. Nobles-Bans, G.R. No. L-67540 (1985)]

The court may grant as many extensions as may be asked [Gregorio v. CA, G.R. No. L-43511 (1976)]

b. Procedure in the court of appeals 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] 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 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

Form of briefs Briefs shall either be printed, encoded or typewritten in double space on legal size, good quality unglazed paper, 330 mm. in length by 216 mm. in width [Sec. 6, Rule 124] Content of briefs The briefs in criminal cases shall have the same contents as provided in Secs. 13 to 14, Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant [Sec. 7, Rule 124] DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO PROSECUTE; GROUNDS 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, except where the appellant is represented by a counsel de oficio [Sec. 8, Rule 124] 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)] 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 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)] 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]

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3. 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. L48547 (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. L-1369 (1949)] 2. In case of automatic review [People v. Cornelio, G.R. No. L-1289 (1971)] Prompt disposition of appeal 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] 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. L-38091 (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)] Scope of the CA’s judgment The CA may: 1. Reverse/affirm/modify the judgment; 2. Increase/reduce the penalty imposed by the TC;

4.

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Remand the case to the RTC for new trial or retrial; Dismiss the case [Sec. 11, Rule 124]

When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors [Ko Bu Lin v. CA, G.R. No. L-57170 (1982)] CA’s power to receive evidence 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] 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] This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that

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the judgment may be executed and/or placed or noted in the proper file. MNT 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; 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: Ground: a. errors of law or a. newly-discovered irregularities evidence material prejudicial to the to his defense substantial rights of the accused have been committed during the trial; b. new and material evidence has been discovered Filed after judgment, Filed after appeal from but before finality of lower court is perfected conviction but before judgment CA can either conduct Cannot remand to the evidentiary hearing lower court in its by itself, or it will exercise of appellate remand the case to the jurisdiction 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] NOTE: This is not available to the State in case the CA reverses the conviction of the accused since double jeopardy shall have attached. [Prof. RVC]

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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. [Prof. RVC] 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 In The Supreme Court 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 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. L-25308 (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 1. Automatic review Automatic review is not a matter of right on the part of the accused, but a matter of law.

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It is available when: 1. The RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review [Sec. 13(a), Rule 124] NOTE: In all cases where the death penalty is imposed by the trial court, the records are forwarded to the CA for automatic review and not to the SC. [A.M. No. 00-5-3-SC] 2. Ordinary appeal It is available when: a. In cases where the CA imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the SC by notice of appeal with the CA. [Sec 13 (c), Rule 124] b. The penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC [People v. Carino (2002)] In these cases, the SC reviews not only errors of law but also the findings of fact by the TC. 3. Petition for review on certiorari It is available when a. The constitutionality or validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question [Sec. 5(2)(a), Art. VIII, 1987 Constitution] b. When validity of law is questioned by an accused convicted under it by the TC, the SC cannot 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. 2487 (1904)] c. When the jurisdiction of any inferior court is in issue d. When only an error or question of law is involved [Sec. 6(a), Rule 45]

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On decisions of the CA and the Sandiganbayan, as a rule, review here is limited to errors of law [Sec. 6(a), Rule 45] General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available [Tagle v. Equitable PCI, G.R. No. 172299 (2008)] Exceptions: In the following cases, certiorari is granted despite existence of the remedy of appeal: 1. Where public welfare and advancement of public policy so dictate; 2. Where the broader interests of justice so require; 3. Where the orders complained of were found to be completely null and void; 4. Where appeal was not considered as the appropriate remedy. [Department of Education v. Cuanan, G.R. No. 169013 (2008)] Review of CA decisions The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases [Sec. 2, Rule 125] General rule: The appellate jurisdiction of the SC in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. The CA’s findings of fact are final. If an appeal in the SC involves questions of facts, the SC has no jurisdiction and should dismiss appeal [Guico v. Mayuga, G.R. Nos.. L-45274-5 (1936)] Exceptions: 1. When the conclusion is a finding founded entirely on speculations/surmises/conjectures 2. When the inference made is manifestly mistaken/absurd/impossible 3. When there is GAD 4. When the judgment is based on a misapprehension of facts 5. When the findings of facts are conflicting 6. When the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee [Napolis v. CA, G.R. No. L-28865 (1972)] [Napolis v. CA, G.R. No. L-28865 (1972)]

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Failure to specify appellate court Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal [R.A. 296] Erroneous mode of appeal In the case of People v. Resuello [GR No. L-30165 (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 re-deliberation, the judgment of conviction of the lower court shall be reversed and the accused acquitted [Sec. 3, Rule 125]

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. As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. [Sec. 11, Rule 122] As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it [Salvatierra v. CA, G.R. No. 107797 (1996)]

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5. Grounds for Dismissal of

Appeal

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)] The prosecution cannot appeal from a judgment of acquittal [Central Bank v. CA, G.R. No. 41859 (1989)] 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. L-13334 (1960)] An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted [People v. Paet, G.R. No. L-9551 (1956)] The preclusion against appeal by the State from judgments or final orders having the effect of acquittal applies even though accused did not raise question of jeopardy [People v. Ferrer, G.R. No. L-9072 (1956)]

Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal [Sec. 11, Rule 122; People v. Gandia, G.R. No. 175332 (2008)] The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from [Sec. 11, Rule 122] Page 375 of 481

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N. Search and Seizure 1. Nature of Search Warrant In general 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] Nature A search warrant is in the nature of a criminal process akin to a writ of discovery, employed by the state to procure relevant evidence of a crime [Malaloan v. CA, G.R. No. 104879 (1994)] It is not available to individuals in the course of civil proceedings. It is interlocutory in character – it leaves something more to be done, which is the determination of the guilt of the accused. 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]

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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)] However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures. General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. 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 circumstances, buy-bust operations, and private searches.

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] The constitutional guarantee is not a blanket prohibition against all searches and seizures. It operates only against “unreasonable” searches and seizures. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured [Rodriguez v. Villamiel, L-44328 (1937)]

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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 time of the day or night [Sec. 9, Rule 126]

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. L82585 (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

Does not expire

Validity

Valid for 10 days from its date [Sec. 10, Rule 126]

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.

3. Application for Search

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]

General rule: It may be filed in any court within whose territorial jurisdiction the crime was committed.

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 ViceExecutive 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

Warrant; Where Filed

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

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e. f.

Violations of the Intellectual Property Code 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. Substance of application A search warrant shall not issue except a. Upon probable cause b. In connection with one specific offense c. To be determined personally by the judge d. After examination under oath or affirmation of the complainant and the witness he may produce e. Particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines [Sec. 4, Rule 126] 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 Validity of the search warrant The search warrant is valid for 10 days from its date. Thereafter, it shall be void [Sec. 10, Rule 126] The lifetime of the search warrant also ends when a return has already been made [Mustang Lumber v. CA, G.R. No. 104988 (1996)] SERVICE OF THE SEARCH WARRANT Right to break door or window to effect search The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or

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any person lawfully aiding him when unlawfully detained therein [Sec. 7, Rule 126] Knock and announce principle Generally, officers executing a search must do the following acts: a. Announce their presence; b. Identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched; c. Show to them the search warrant; and d. Explain the warrant in a language or dialect known and understood by them [People v. Huang Zen Hua, G.R. No. 139301 (2004)] When unannounced intrusion permissible a. Person in the premises refuses to open it upon demand; b. Person in the premises already knew of the identity and authority of the officers; c. When the officers have an honest belief that there is an imminent danger to life and limb; d. When those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officers to believe that an escape or the destruction of evidence is imminent. [People v. Huang Zen Hua, G.R. No. 139301 (2004)] Search in presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality [Sec. 8, Rule 126] Time of making search General Rule: The search shall be made at day time Exception: Unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night [Sec. 9, Rule 126] A search warrant violates Sec. 9, Rule 126 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search, causing untold conveniences to the person searched. Where a search is to be made during the night time, the authority for executing the same at that time

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should appear in the directive on the face of the search warrant [Asian Surety v. Herrera, G.R. No. L25232 (1973)]

4. Probable Cause (in Search

POST-SERVICE

Probable cause means 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 [Santos v. Pryce Gases Inc., G.R. No. 165122 (2007)]

Receipt of property seized a. If the lawful occupant is present: the officer seizing the property under the search warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made. b. If the lawful occupant is not present: the officer seizing the property under the search warrant must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property [Sec. 11, Rule 126] Delivery and inventory of property a. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. b. Ten days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. c. If the return has been made, the judge shall ascertain whether Sec. 11, Rule 126, on giving or receipts, has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that delivery has been complied with. d. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. [Sec. 12, Rule 126] The court which issued the search warrant acquires jurisdiction over the items seized under the said warrant. Goods seized lawfully on the basis of the said warrant or its accepted exceptions are in custodia legis. Only that court which issued the warrant may order the release or disposition thereof. The jurisdiction, custody and control of the court over the items seized cannot be interfered with. Custody lasts until the institution of the appropriate criminal action with the proper court [Tenorio v. CA, G.R. No. 110604 (2003)]

Warrants)

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

Aside from the requirements mandated by Sec. 4, Rule 126, 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] 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

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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)] A warrant not based on personal knowledge is void. 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. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause [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)]

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]

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Particularity of place to be searched Description of 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)] An apparent typographical error will not necessarily invalidate the search warrant, as long as the application contains the correct address [Burgos v. Chief of Staff, G.R. No. L-64261 (1984)] Particularity of things to be seized 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. Otherwise, the search and seizure of the items in the implementation of such search warrant is illegal and the items seized are inadmissible in evidence [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 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)] Such discretion is abhorrent, as it makes the person, against whom the warrant is issued, vulnerable to abuses. Our Constitution guarantees our right against unreasonable searches and seizures, and safeguards have been put in place to ensure that people and their properties are searched only for the most compelling and lawful reasons [Worldwide Web Corporation v. People, G.R. No. 161106, January 13, 2014] Search warrants authorizing the seizure of books of accounts and records “showing all the business transactions” of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law [Stonehill v. Diokno, G.R. No. L-19550 (1967)] 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)]

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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)] Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. It would be a drastic remedy indeed if a warrant is to be invalidated in toto because the judge erred in authorizing a search for other items not supported by the evidence [People v. Salinguit, 356 SCRA 683 (2001)] Note: The law does not require that the things must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. Otherwise, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things they are looking for [Vallejo v. People, G.R. No. G.R. No. 156413 (2004), Kho v. Makalintal, G.R. Nos.. 94902-06 (1999)]

7. Personal Property to be

Seized

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] 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)]

8. Exceptions to the Search

Warrant Requirement

a.

b. c. d. e. f. g. h.

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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.

a. Search incidental to lawful arrest In a search incidental to an arrest, 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] Purpose 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)] Scope A valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase “within the area of his immediate control” means the area from within which he might gain possession of a weapon or destructible evidence. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested [People v. Calantiao, G.R. No. 203984 (2014), citing Valeroso v. CA, G.R. No. 164815 (2009)]

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“Lawful arrest” Although, generally, a warrant is necessary for a valid arrest, Sec. 5, Rule 113 provides the exceptions such as arrests in flagrante delicto, arrests effected in hot pursuit, and arrests of escaped prisoners [People v. Mariacos, G.R. No. 188611 (2010)] In searches incident to a lawful arrest, 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)] When an individual is lawfully arrested, he/she may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control, may be seized [OCA v. Barron, A.M. No. RTJ-98-1420 (1998)] Illegal search 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)]

b. Consented search 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)]

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A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law [People v. Nuevas, G.R. No. 170233 (2007)] Consented search is reasonable only if kept within the bounds of the actual consent. A person’s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto. 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)]

c. Search of a moving vehicle 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)] Rationale 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

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vehicles are instruments or proceeds of some criminal offense. The search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of search warrant [Roldan v. Arca, G.R. No. L-25434 (1975)] When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains a[n] item, article or object which by law is subject to seizure and destruction [People v. Breis, G.R. No. 205823 (2015), citing People v. Libnao, G.R. No. 136860 (2003)]

d. Checkpoints; body checks in airport 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)] 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)]

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e. Plain View Situation Requisites 1. 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)] It is clear that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized [People v. Doria, G.R. No. 125299 (1999)] 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)] The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object Even if an object is in plain view, before it can be seized without a search warrant, its incriminating nature must first be apparent Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering as long as its discovery was inadvertent, and the item was incriminating [United Laboratories v. Isip, G.R. No. 163858 (2005)] 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,

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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)]

f. Stop and frisk situation Stop and frisk is a limited protective search of outer clothing for weapon [Malacat v. CA, G.R. No. 123595 (1997)] Where a police officer observes unusual conduct, which leads him reasonably to 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. Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him [Malacat v. CA, G.R. No. 123595 (1997), citing Terry v. Ohio, 392 U.S. 1 (1968)] Genuine reason required Other notable points of Terry are that while probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him [Malacat v. CA, G.R. No. 123595 (1997), citing Terry v. Ohio, 392 U.S. 1 (1968)] Test of reasonableness The test of reasonableness is the concept of suspiciousness present in the situation the officer finds himself. This is subject to the experiences of the officer for them to determine whether the situation does feel suspicious based on the facts presented to them. In jurisprudence, seeing a person with red eyes or is walking in swaying manner would amount to a suspicious situation [People v. Cogaed, G.R. No. 200334 (2015)]

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Dual purpose of stop-and-frisk 1. The general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and 2. The more pressing interest of safety and selfpreservation 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 Stop and frisk is usually confused with 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)] "Stop and frisk" searches are also conducted to prevent the occurrence of a crime and should be used when dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure a search warrant [Manalili v. CA, G.R. No. 113447 (1997)]

g. 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. L-19259 (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] 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]

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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)]

REMEDIES 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.

h. Other exceptions

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.

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. Also, the surveillance team before the raid was fired upon by the people inside. 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)] Buy-bust operation This is a form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in committing an offense. There is no need for a search warrant (or warrant of arrest) because the accused is caught in flagrante delicto. Private searches In one case, the evidence was obtained by a private person acting in a private capacity, while performing company standard operating procedures and without state participation and intervention. It was held that the constitutional rights cannot be invoked when there is no government interference [People v. Marti, G.R. No. 81561 (1991)]

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)]

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)]

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 MTQ 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)] In Abuan v. People [G.R. No. 168773 (2006)], the SC ruled that the accused did not waive her right to file a MTQ the search warrant in question and for the suppression of the evidence seized by the police

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officers. She reserved her right to question the warrant when she filed her motion for bail and rejected the prosecution’s proposal during pre-trial to admit the validity of the warrant. She adduced her evidence supporting her motion during the trial and objected to the admission of the warrant and the evidence confiscated. 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. Since two separate courts with different participations are involved in this situation, a MTQ a search warrant and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appropriate higher court [Malaloan v. CA, G.R. No. 104879 (1994)] d. File a motion to return things seized This is the remedy used if the search was already conducted and goods were seized as a consequence thereof. 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)]

REMEDIAL LAW

against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case [Yu v. Honrado, G.R. No. 50025 (1980)] 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. 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)]

Where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from the purchaser with the use of a search warrant although the criminal case for estafa Page 386 of 481

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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)]

REMEDIAL LAW

O. Provisional Remedies 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 civil action has been waived, reserved, or instituted separately, provisional remedy applicable may not be availed of in criminal action. Instead, provisional remedy should be applied for in separate civil action instituted [Riano 571, 2011 Updated Ed.] 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 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.

2. Kinds of Provisional

Remedies

In general Reference to provisional remedies in Sec. 1, Rule 127 is made in general terms, hence preliminary injunction, preliminary attachment, receivership, replevin or support pendente lite may be availed of [Riano 572, 2011 Updated Ed.] However, only preliminary attachment is provided for under the same rule. 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 When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the Page 387 of 481

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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 [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 enforced 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: Comprehensive Dangerous Drugs Act of 2002, Cybercrime Prevention Act of 2012, Rules of Procedure for Environmental Cases, Rules of Procedure for Intellectual Property Rights Cases, 1

REMEDIAL LAW

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 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)] 1.

P. Revised Guidelines for Continuous Trial of Criminal Cases A.M. No. 15-06-10-SC Objectives 1. To protect and advance the constitutional right of persons to a speedy disposition of their criminal cases; 2. To reinforce and give teeth to the existing rules on criminal procedure and other special rules prescribing periods for court action and those which promote speedy disposition of criminal cases; and 3. To introduce innovations and best practices for the benefit of the parties. Applicability ▪ All newly-filed criminal cases (filed after effectivity date), including those governed by Special Laws and Rules1, in the : and Criminal Cases Commercial Courts.

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cognizable

by

Family

Courts

and

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▪

CRIMINAL PROCEDURE

o the 1st and 2nd Level Courts o Sandiganbayan o Court of Tax Appeals Pending criminal cases with respect to the remainder of the proceedings

 The Revised Guidelines SHALL NOT APPLY to criminal cases filed under the Rule on Summary Procedure, UNLESS otherwise specifically provided

provided for under Rule 137)

MOTION FOR POSTPONEMENT

Effectivity date: 1 September 2017 Effect of non-compliance: Non-compliance with the Revised Guidelines, including failure to observe the timelines and deadlines herein provided, is a ground for DISCIPLINARY ACTION. PROCEDURE: HEARING DAYS AND CALENDAR DAYS WHEN

Trial

shall be held from Monday to Thursday

Hearing on motions, arraignment and pretrial, and promulgation of decisions

cases shall be called at exactly 8:30 A.M. and 2:00 P.M

PROHIBITED MOTION

PURSUANT TO Administrative Circular No. 399

o o

Sec. 7, Rule 15, Rules of Court

NOTE: All courts shall ensure the posting of their court calendars outside their courtrooms at least (1) day before the scheduled hearings [OCA Circular No. 250-2015] MOTIONS

o

MOTION FOR INHIBITION

(based on grounds

RESOLUTION/ COURT ACTION Shall be resolved immediately or within

Prohibited, except if it is based on: 1) acts of God 2) force majeure 3) physical inability of the witness to appear and testify If the Motion is granted based on such exceptions, the moving party shall be warned that the presentation of its evidence must still be finished on the dates previously agreed upon. shall be DENIED outright before the scheduled arraignment without need of comment and/ or opposition

shall be filed within a non-extendible period of ten (10) calendar days from notice/receipt of the order of the court to file the same The court shall resolve the motion within a non-extendible period of ten (10) calendar days from the expiration of the ten (10)-day period, with or without comment. The court, at its discretion, may set the motion for hearing within a non-extendible period of ten (10) calendar days from the expiration of the ten (10)-day period to file comment, in which case the same shall be submitted for resolution after the termination of the hearing, and shall be resolved within a non-extendible period of ten (10) calendar days thereafter. Reply and memorandum need not be submitted.

Motion to discharge accused as state witness, where the prosecution is required to present evidence in support thereof [Sec. 17, Rule 119] o

MOTION

two (2) calendar days from date of their filing

MERITORIOUS MOTION Comment of the adverse party

o shall be held in the morning of Fridays

REMEDIAL LAW

o

shall be submitted for resolution from the termination of the hearing, and shall be resolved within a non-extendible period of ten (10) calendar days thereafter

The motion for reconsideration of the resolution of a meritorious motion

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shall be filed within a non-extendible period of five (5) calendar days from receipt of such resolution, and o the adverse party shall be given an equal period of five (5) calendar days from receipt of the motion for reconsideration within which to submit its comment. o Thereafter, the motion for reconsideration shall be resolved by the court within a nonextendible period of five (5) calendar days fro1n the expiration of the five (5)-day period to submit the comment. NOTE: Motions that do not conform to the requirements stated shall be considered unmeritorious and shall be denied outright.

Meritorious Motions: These are Motions that allege

Prohibited Motions

4.

o

a. b.

c.

d. e. f. g.

Motion for judicial determination of probable cause. Motion 1. For preliminary investigation filed beyond the five (5)-day reglementary period in inquest proceedings [Sec. 6, Rule 112], or 2. When preliminary investigation is required [Sec. 8, Rule 112], or allowed in inquest proceedings and the accused failed to participate despite due notice. Motion for reinvestigation of the prosecutor recommending the filing of information once the information has been filed before the court 1. if the motion is filed without prior leave of court; 2. when preliminary investigation is not required under Sec. 8, Rule 112; and 3. 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 • lack of due process when the accused was actually notified Motion to quash information when the ground is not one of those stated in Sec. 3, Rule 117. Motion for bill of particulars that does not conform to Sec. 9, Rule 116. Motion to suspend the arraignment based on grounds not stated under Sec. 11, Rule 116. Petition to suspend the criminal action on the ground of prejudicial question, when no civil case has been filed, pursuant to Sec. 7, Rule 111.

plausible grounds supported by relevant documents and/ or competent evidence, except those that are already covered by the Revised Guidelines, such as: 1.

2. 3.

5.

6. 7. 8. 9.

Motion filed by the prosecution as a result of a reinvestigation, reconsideration, and review; to a. to withdraw information, or b. to downgrade the charge in the original information, or c. to exclude an accused originally charged therein Motion to quash warrant of arrest; Motion to suspend arraignment on the ground of an unsound inental condition under Sec. ll(a), Rule 116; Motion to suspend proceedings on the ground of a prejudicial question where a civil case was filed prior to the criminal case under Sec. ll(b), Rule 116 Motion to quash information on the grounds [under Sec. 3, par. (a), (b), (g), and (i), Rule 117] a. that the facts charged do not constitute an offense b. lack of jurisdiction c. extinction of criminal action or liability, or d. double jeopardy Motion to discharge accused as a state witness under Sec. 17, Rule 119; Motion to quash search warrant under Sec. 14, Rule 126 motion to suppress evidence; and Motion to dismiss on the ground that the criminal case is a SLAPP under Rule 6 of the Rules of Procedure for Environmental Cases.

CONSOLIDATIONS When newly-filed criminal cases involving offenses based on the same NEWLYfacts or forming part of a series of FILED offenses of similar character, are CASES accompanied by a motion for consolidation filed by the Office of the Prosecutor o The Executive Judge shall cause the raffle to only one court which shall then resolve said motion for consolidation, preferably on the date of the arraignment and in the presence of the accused and counsel. In cases involving multiple accused PENDING where a subsequent information is CAXES WITH filed involving an accused who has been subjected to further investigation

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CRIMINAL PROCEDURE

MULTIPLE ACCUSED

o

by the Office of the Prosecutor over an incident which has the same subject matter as a prior information/ s against different accused The said subsequent case when filed accompanied by a motion for consolidation from the Office of the Prosecutor shall no longer be raffled o The subsequent case shall be assigned directly by the Executive Judge to the court where the earlier case is pending o If the earlier case is already at the trial stage and witnesses have been presented, the parties may be allowed to adopt the evidence so far presented, without prejudice to additional direct examination questions and crossexamination questions.

ARCHIVING OF CASES REVIVAL OF PROVISIONALLY DISMISSED CASES

REMEDIAL LAW

Waiver of Reading of the Information. In multiple cases, the court may allow a waiver of the reading of the information upon: ▪ The full understanding and express consent of the accused and his/her counsel o consent shall be expressly stated in both ➢ the minutes/ certificate of arraign1nent ➢ the order of arraignment ▪ The court’s personal examination of the accused ▪ Explanation of the waiver to the accused in the language or dialect known to him/her ▪ ensure the accused's full understanding of the consequences of the waiver Arraignment Proper 1.

Plea Bargaining Except in Drug Cases

ARRAIGMENT AND PRE-TRIAL Once the court has acquired jurisdiction over the person of the Accused

If the accused desires to enter a plea of guilty to a lesser offense

Schedule: The arraignment of the accused and the pretrial shall be set within the ff period, UNLESS a shorter period is provided by special law or Supreme Court circular. ▪ within ten (10) calendar days from date of the court's receipt of the case for a detained accused ▪ within thirty (30) calendar days from the date the court acquires jurisdiction (either by arrest or voluntary surrender) over a non-detained accused

2.

The court must set the arraignment of the accused in the commitment order, in the case of detained accused, or in the order of approval of bail, in any other case.

Notice: shall be sent to the accused, his/her counsel, private complainant or complaining law enforcement agent, public prosecutor, and witnesses whose names appear in the information, for purposes of pleabargaining, arraignment and pre-trial.

Plea bargaining shall immediately proceed, provided: a) the private offended party in private crimes, or b) the arresting officer in victimless crimes Is present to give his/her consent with the conformity of the public prosecutor to the plea bargaining

Plea of Guilty to the Crin1e Charged in the Information

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If the accused pleads guilty to the crime charged in the information

Thereafter, judgment shall be immediately rendered in the same proceedings

Judgment shall be immediately rendered EXCEPT in those cases involving capital punishment

U.P. LAW BOC

Where No Plea Bargaining or Plea of Guilty Takes Place

CRIMINAL PROCEDURE

If the accused does not enter a plea of guilty, whether to a lesser offense or to the offense charged in the information

The court shall immediately proceed with the arraignment and the pretrial, in accordance with ff: 1.

2.

The schedule of the trial dates, for both the prosecution and the accused, shall be continuous and within the periods provided in the Regular Rules/ Special Rules. The trial dates may be shortened depending on the number of witnesses to be presented. A flowchart shall be prepared by the court which shall serve as the final schedule of hearings.

Arraignment and Preliminary Conference of Mediatable Cases subject to the Rule on Summary Procedure

If the accused does not enter a plea of guilty, whether to a lesser offense or to the offense charged in the information

subheading III, item no. 8, subparagraph ( d) ii (Plea of Guilty to the Crime Charge 1n the Information) shall be followed.

If the accused pleads guilty to a lesser offense,

subheading III, item no. 8, subparagraph ( d) 1 (Plea Bargaining except in Drug Cases) shall be followed.

the court shall immediately proceed with the arraignment and the preliminary conference, and thereafter refer the case to mediation. (See Annex 7)

(see sample flowchart) Conduct of Pre-Trial ▪ Absence: The court shall proceed with the pretrial despite the absence of the accused and/ or private complainant, provided: o They were duly notified of the same, and o The counsel for the accused, as well as the public prosecutor, are present. ▪ Stipulation: Proposals for stipulations shall be done with the active participation of the court itself and shall not be left alone to the counsels. ▪ Marking of Evidence: The documentary evidence of the prosecution and the accused shall be marked. ▪ Pre-Trial Order: It shall i1nmediately be served upon the parties and counsel on the same day after the termination of the pre-trial. NOTE: Courts must strictly comply with the Guidelines to be Observed in the Conduct of PreTrial under A.M. No. 03-1-09-SC. MEDIATION 1.

The arraignment and preliminary conference shall be simultaneously held, and the court shall take up all the matters required under Sec. 14, Rule on Summary Procedure during the preliminary conference. If the accused pleads guilty to the crime charged in the information

REMEDIAL LAW

2.

3.

The court shall serve the Order of Referral to the Philippine Mediation Center (PMC) Unit immediately after the arraignment and the pretrial/ preliminary conference. o The referral of the case for mediation to the (PMC) Unit shall be made only after the conduct of the arraignment and the pretrial/ preliminary conference. The mediation shall be terminated within a nonextendible period of thirty (30) calendar days from the date of referral by the court to the PMC Unit. Trial shall proceed a. After the lapse of the mediation period or b. If mediation fails

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CRIMINAL PROCEDURE

The fallowing cases shall be referred to mediation on the civil liability UNLESS a settlement is reached earlier in the pretrial/ preliminary conference: 1.

2.

3.

4. 5.

2

Crimes where payment may prevent criminal prosecution or may extinguish criminal liability, such as violations of: o B.P. Blg. 22; o SSS Law (R.A. No. 1161, as a1nended by R.A No. 8282); and o PAG-IBIG Law (R.A. No. 9679). Crimes against property under Title 10 of the Revised Penal Code (RPC), where the obligation may be civil in nature, such as: o Theft (Art. 308), cognizable by the first level courts; o Estafa [Art. 315(1 )] , except estafa under Art. 315 (2) and (3); o Other forms of swindling [Art. 316] o Swindling of a minor under [Art. 317] o Other deceits under [Art. 318] o Malicious mischief under [Art. 327] Crimes against honor under Title 13, RPC, where the liability may be civil in nature, such as: o Libel by means of writings or similar means under [Art. 355] o Threatening to publish and offer to present such publication for a compensation [Art. 356] o Prohibited publication of acts referred to in the course of official proceedings under Art. 357, RPC; o Grave Slander (Grave Oral Defamation) of serious and insulting nature under Art. 358, par. 1, RPC; o Simple Slander (Oral Defamation) - not of a serious and insulting nature under Art. 358, par. 2, RPC; o Grave Slander by Deed - of a serious nature under Art. 359, par. 1, RPC; o Simple Slander by Deed - not of a serious nature under Art. 359, par. 2, RPC; o Incriminating innocent person under Art. 363, RPC; o Intriguing against honor under Art. 364, RPC; Libel under R.A. 10175 (Cybercrime Prevention Act of 2012) where the liability may be civil in nature; Criminal negligence under Title 14, RPC, where the liability inay be civil in nature; and

forensic chemists, medico-legal officers, investigators, auditors, accountants, engineers, custodians, expert witnesses and other

6.

REMEDIAL LAW

Intellectual property rights cases where the liability may be civil in nature.

Criminal cases subject to the Rule on Summary Procedure SHALL NOT be referred to mediation, EXCEPT those cases mentioned above BAIL FORM OF TESTIMONY I. FOR FIRST LEVEL COURTS CASE FORM OF TESTIMONY The testimonies of witnesses shall consist of: 1. The duly subscribed written statements given to law In all enforcement or peace criminal officers or cases, 2. The affidavits or counterincluding affidavits submitted before those the investigating prosecutor, covered by and the Rule on Summary If such are not available: Procedure: 1. It shall be in the form of judicial affidavits, subject to additional direct and crossexamination questions. Note: The trial prosecutor may dispense with the sworn written statements submitted to the law enforcement or peace officers and prepare the judicial affidavits of the affiants or modify or revise the said sworn statements before presenting it as evidence. II. FOR SECOND LEVEL COURTS, THE SANDIGANBAYAN, AND THE COURT OF TAX APPEALS CASE FORM OF TESTIMONY In criminal The testimonies of the witnesses shall cases where be: the demeanor of 1. The duly subscribed written the witness statements given to law is not enforcement or peace essential in officers or determining 2. The affidavits or counterthe affidavits submitted before credibility of the investigating prosecutor said witness2 similar witnesses, who will testify on the authenticity, due execution and the contents of public documents and reports

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in criminal cases that are transactional in character3

CRIMINAL PROCEDURE

If such are not available: 1. It shall be in the form of judicial affidavits, subject to additional direct and crossexamination questions.

Other crimes where the culpability or innocence of the accused can be established through documents In all other cases where the culpability or the innocence of the accused is based on the testimonies of the alleged eyewitnesses

d. witnesses who will testify on the civil liability This rule is without prejudice to allowing additional direct and cross-examination questions. If stipulations cannot be had in full, where the adverse party does not waive the right to crossexamination, the subject of the direct testimony of these witnesses should be stipulated upon, without prejudice to additional direct and crossexamination questions.

▪ ▪

TRIAL

The court shall encourage the accused and the prosecution to avail of:

The testimonies of these witnesses shall be in oral form.

For the accused Secs. 12 and 13, Rule 119 on the application for examination of witness for accused before trial and how it is made

counsel de parte, the hearing shall proceed upon appointment by the court of a counsel de officio.

Offer of evidence.

The offer of evidence, the comment/ objection thereto, and the court ruling thereto shall be made ORALLY.

STIPULATIONS

3

For the prosecution Sec. 15, Rule 119 on the conditional examination of witness for the prosecution

Absence of counsel de parte. - In the absence of the

1.

▪

REMEDIAL LAW

During pre-trial/ preli1ninary conference, the court shall require the parties to enter into stipulations on the subject of both direct and cross-examinations of witnesses: a. who have no personal knowledge of the material facts constituting the crimes, such as: • forensic chemists, medico-legal officers, investigators, auditors, accountants, engineers, custodians, expert witnesses and other similar witnesses b. who will testify on the authenticity, due execution and the contents of public documents and reports c. corroborative witnesses; and

2. 3.

A party is required to make his/ her oral offer of evidence on the same day after the presentation of his/her last witness. o In making the offer, the counsel shall cite the specific page numbers of the court record where the exhibits being offered are found, if attached thereto. o 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. The opposing party is required to immediately interpose his/her oral comment/ objection thereto. Thereafter, the court shall make a ruling on the offer of evidence in open court.

falsification, malversation, Estafa

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After the prosecution has rested its case, the court shall inquire from the accused if he/ she desires: 1. To move for leave of court to file a demurrer to evidence, or 2. To proceed with the presentation of his/her evidence.

Demurrer to Evidence (DTE)

necessary, it shall consider the case submitted for decision.

Presentation of Rebuttal and Sur-rebuttal Evidence ▪

If the accused orally moves for leave of court to file a demurrer to evidence, the court shall ORALLY resolve the same. ▪

▪

▪

▪

▪

If the motion for leave is denied, the court shall issue an order for the ACCUSED: o To present and terminate his/her evidence on the dates previously scheduled and agreed upon, and o To orally offer and rest his/her case on the day his/her last witness is presented If despite the denial of the motion for leave, the accused insists on filing the DTE, the previously scheduled dates for the accused to present evidence shall be cancelled. Period of Filing: o The DTE shall be filed within a nonextendible period of ten (10) calendar days from the date leave of court is granted, and o The corresponding comment shall be filed within a non-extendible period of ten (10) calendar days counted from date of receipt of the DTE. Resolution: The demurrer shall be resolved by the court within a non-extendible period of thirty (30) calendar days from date of the filing of the comment or lapse of the ten (10)-day period to file the same. If the motion for leave of court to file DTE is granted, and the subsequent DTE is denied o The ACCUSED shall: • present and terminate his/her evidence (one day apart, morning and afternoon) and • orally offer and rest his/her case on the day his/her last witness is presented o The COURT shall rule on: ▪ the oral offer of evidence of the accused and ▪ the comment or objection of the prosecution on the same day of the offer o If the court denies the motion to present rebuttal evidence because it is no longer

REMEDIAL LAW

▪

▪

If the court grants the motion to present rebuttal evidence, the PROSECUTION shall: o immediately proceed with its presentation after the accused had rested his/her case, and o orally rest its case in rebuttal after the presentation of its last rebuttal witness The ACCUSED shall: o immediately present sur-rebuttal evidence, if there is any, and o orally rest the case in sur-rebuttal after the presentation of its last sur-rebuttal witness Thereafter, the court shall submit the case for decision.

One-day examination of witness rule: The court

shall strictly adhere to the rule that a witness has to be fully examined in one (1) day. PROMULGATION

Schedule of promulgation: The date of the promulgation of its decision ▪ Shall not be more than ninety (90) calendar days fro1n the date the case is submitted for decision o For those covered by Regular Rules, including Sandiganbayan and Court of Tax Appeals ▪ Except when the case is covered by Special Rules and other laws which provide for a shorter period

Drug Cases

(15) days from the date of submission for resolution of the case Environmental (60) days from the last day of Cases the 30-day period to file the memoranda Intellectual (60) days from the time the Property case is submitted for decision, Rights Cases with or without the memoranda Note: The court shall announce in open court and include in the order submitting the case for decision, the date of the promulgation of its decision.

Resolution of motion for reconsideration of judgment of conviction or motion for new trial.

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▪

▪

CRIMINAL PROCEDURE

A motion for reconsideration of judgment of conviction or motion for new trial under Rule 121 filed within the reglementary period of fifteen (15) days from promulgation Shall be resolved within: o A non-extendible period of ten (10) calendar days fro1n the submission of the comment of the prosecution. o With or without comment, the court shall resolve the motion within the ten (10)-day period.

MEMORANDA ▪

The submission of memoranda discretionary on the part of the court

is

Format: shall exceed (25) pages in length, single-spaced, on legal size paper, using size 14 font. Submission period: non-extendible and shall not suspend the running of the period of promulgation of the decision. o With or without memoranda, the promulgation shall push through as scheduled. o

▪

LACK OF STENOGRAPHIC NOTES ▪

Incomplete TSN is not a ground to defer submission of the case for decision: o

▪

Judges who conducted the trial and heard the testimonies of some or all of the witnesses shall not defer the submission of the case for decision on the ground of incomplete or missing transcript of stenographic notes

If the case was heard completely by another judge, not the judge tasked to write the decision: o

The latter shall direct the stenographers concerned to submit the complete transcripts within a period of (30) calendar days from date of his/her assumption to office.

INVENTORY OF CRIMINAL CASES The one (1) week of each semester devoted for the conduct of annual and semi-annual physical inventory of cases and preparation of the semestral docket inventory report pursuant to Administrative Circular No. 76-2007 SHALL NOT SUSPEND court hearings.

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Q. Rule on Cybercrime Warrants A.M. No. 17-11-03-SC SECTION 1. Scope: 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. SECTION 2. GENERAL PROVISIONS VENUE FOR FILING A CRIMINAL ACTION A. Violation of Section 4 (Cybercrime offenses) and/or Section 5 (Other offenses) of RA 10175 (Cybercrime Prevention Act of 2012 hereinafter “RA 10175”) 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. B. All other crimes committed using Information and Communication Technology (ICT) shall be filed before the regular or specialized courts as the case maybe. VENUE FOR FILING AN APPLICATION FOR CYBERCRIME WARRANT A. Violation of Section 4 and Section 5 of RA 10175 GR: 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 City have the special authority to act on applications and issue

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warrants which shall be enforceable nationwide and outside the Philippines.

deemed a notification to preserve data until the final termination of the case.

B. Application for a warrant for violation of all crimes defined, and penalized by RPC and other special laws if committed using 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

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]

JUDGE EXAMINES APPLICANT AND RECORD BEFORE ISSUING A WARRANT The judge must examine the applicant and his/her witnesses in the form of searching questions and answers, in writing and under oath. EFFECTIVITY OF WARRANTS GR: Not exceeding 10 days from its issuance X: 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 SECTION 3. PRESERVATION OF COMPUTER DATA GR: 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 X: One-time extension for another 6 months may be ordered X2: 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

SECTION 4. DISCLOSURE OF COMPUTER DATA 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.

2. 3.

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; The Order must be in relation to a complaint officially docketed and assigned for investigation; and The disclosure must be necessary and relevant for the purpose of investigation.

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;

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6. 7.

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Manner or method by which the disclosure of the computer data or subscriber’s information is to be carried out, if available; and Other relevant information that will persuade the court that there is a probable cause to issue a WDCD.

Return on the WDCD

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 information, or upon order of the issuing court if no criminal action is filed.

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 SECTION 5. INTERCEPTION OF COMPUTER DATA Interception refers to: 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.

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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 1. The probable offense involved 2. Relevance and necessity of the computer data or subscriber’s information sought to be intercepted for the purpose of investigation 3. 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; 4. Particular description of the computer data or subscriber’s information sought to be intercepted; 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 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

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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: 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. SECTION 6. 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

GR: 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. X: Off-site search may be conducted provided that a forensic image is made, and that the reasons for the off-site search are stated in the initial return

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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 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.

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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 forensic examination the computer data contained therein. Content of WECD It shall state the essential facts similar to WDCD except that the subject matter us 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.

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SECTION 7. 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. Access and Use of Computer Data GR: 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 Except: 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.

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SECTION 8. 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). How Destruction of Computer Data is Made 1. Made in the presence of the Branch Clerk-ofCourt, 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.

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EVIDENCE

EVIDENCE Remedial Law

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VIII.EVIDENCE

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[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]

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]

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] This rule must be read as referring to the rules of evidence AS CONTAINED in the ROC, because – obviously – constitutional evidentiary rules permeate ALL proceedings and is the constant, bottomline yardstick for the validity of ALL acts in Philippine territory [Prof. Avena] 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]

No Vested Right of Property in Rules of Evidence The general rule is that there is no vested right of property in rules of evidence [Aldeguer v. Hoskyn, G.R. No. 1164 (1903)] 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' is valid or a contract waiving the privilege against the disclosure of confidential communications made by a patient to physician). 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).

3. Evidence in Civil Cases v.

Evidence in Criminal Cases

General rule: The rules of evidence shall be the same in all courts and in all trials and hearings [Sec. 2, Rule 128]

Preponderance of evidence [Sec. 1, Rule 133] Offer of compromise NOT an admission of any liability, and is not admissible in evidence against the offeror [Sec. 27, Rule 130], as a general rule [Tan v. Rodil Enterprises, G. R. No. 168071 (2006)]

Exceptions: If otherwise provided by: 1. Law [e.g. 1987 Constitution, statutes] 2. Rules of Court

Exceptions: The party making the offer admits the existence of an indebtedness

Note: All other proceedings are NON-JUDICIAL, 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]

b. Uniformity of Application

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Proof beyond reasonable doubt [Sec. 2, Rule 133] Offer of compromise by the accused may be received in evidence as an implied admission of guilt. Exceptions: a. for quasi-offenses or b. those allowed by law to be compromised, examples:

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Preponderance of evidence [Sec. 1, Rule 133] combined with a proposal to settle the claim amicably. In Tan, petitioner made categorical judicial admissions, not only as to his liability, but also, as to the amount of indebtedness in the form of rentals due: a. Petitioner agreed in open court to pay the amount of P440,000.00, representing petitioner’s unpaid rentals from September 1997 to June 2000; and that petitioner will pay the monthly rentals computed at P13,750.00 on or before the 5th day of each month after 30 June 2000, as detailed by the Order of the MeTC; and b. In his Motion to Allow Defendant to Deposit Rentals, petitioner stated that the rentals due on the premises in question from September 1997 up to the present amounted to P467,500.00, as of the date of filing the Motion.

EVIDENCE

Proof beyond reasonable doubt [Sec. 2, Rule 133] 1. Sec 204, RA 8424 (Tax Reform Act of 1997), which provides that payment of any internal revenue tax and all criminal violations may be compromised, except those already filed in Court and those involving fraud; 2. In rape cases, the subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio [Art. 266-C, RPC, as

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Preponderance of evidence [Sec. 1, Rule 133]

Proof beyond reasonable doubt [Sec. 2, Rule 133] inserted by R.A. 8353] A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer [Sec. 27, Rule 130]

Constitutional presumption of innocence does NOT apply [Sec. 14, Art. III, Constitution refers only to “in all criminal prosecutions”] However, the ROC requires meeting the burden of proof [Sec. 1, Rule 131] of preponderance of evidence [Sec. 1, Rule 133]. Note also the disputable presumption that a person is innocent of wrong [Sec. 3(a), Rule 131]. See also Sec. 3(m), (p), (x), (aa), and (ff), Rule 131; Sec. 3(4), Rule 132; and Sec. 5, Rule 133.

Presumption of innocence a constitutional guarantee on the accused [Sec. 14, Art. III, Constitution]

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is NOT admissible as proof of criminal or civil liability for the injury [Sec. 27, Rule 130] The following distinctions may also be noted a. In terms of evidence in connection with constitutional law doctrines – e.g., under par. 4, Sec. 12, Art. III, Constitution, an uncounseled extra-judicial confession elicited during custodial investigation will be inadmissible in any criminal case against the accused, but will be admissible in a civil case for damages by the latter against the violator

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In terms of evidence arising from procedure – e.g.: 1. Judicial Affidavit Rule [A.M. No. 12-8-8-SC] – does not apply to criminal case where penalty exceeds six years) 2. Guidelines in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures [A.M. No. 03-1-09-SC] – “All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1 of Rule 118 shall be approved by the court.” (par. 8, Part B) c. The rules on search and seizure in constitutional law in connection with criminal procedure do not apply in civil actions involving infringement of intellectual property, where the applicable rule is A.M. No. 02-1-06-SC (Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights)

4. Proof v. Evidence Proof Result or effect of evidence [2 Regalado 698, 2008 Ed.] The end result

Evidence Mode and manner of proving competent facts in judicial proceedings [Bustos v. Lucero, G.R. No. L-2068, (1948)] The means to an end

5. Factum Probans v. Factum

Probandum

Factum probans Evidentiary fact Fact by which the factum probandum is to be established Materials which establish that proposition

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or the ultimate fact can be established. [Dela Llana vs. Biong, G.R. No. 182356 (2018)]

6. Classes of Evidence

According to Form

a.

Object - those addressed to the senses of the court [Sec. 1, Rule 130] b. Documentary - consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Sec. 2, Rule 130] c. Testimonial - evidence elicited from the mouth of a witness [Riano 180, 2016 Ed., citing Black’s Law Dictionary] It involves two levels of perception: that of the witness perceiving the event, and that of the judge evaluating the witness There is no hierarchy with respect to the physical forms of evidence. A fact may be proved by any kind; the court may admit. There is no rule (in general) that prefers one form rule as against another [Adzuara v. C.A., G.R. No. 125134 (1999)] In Adzuara, the petitioner claimed that the medical certificate presented by the prosecution was uncorroborated by actual testimony of the physician who accomplished the same and as such has no probative value insofar as the physical injuries suffered by the victim are concerned. The SC disagreed, ruling that the fact of the injury resulting from the collision may be proved in other ways such as the testimony of the injured person.

7. Cumulative and

Corroborative Evidence

Factum probandum Ultimate fact Fact sought to be established Proposition

[2 Regalado 698-699, 2008 Ed.] One must adduce during trial the factum probans or the evidentiary facts by which the factum probandum

Note: This distinction refers to the uniformity of evidentiary form, not the distinction between forms of evidence per se [Prof. Avena] Cumulative Corroborative evidence evidence Evidence of the same Additional evidence of a kind and to the same different character to state of facts the same point [2 Regalado 702, 2008 Ed.] Cumulative evidence refers to pieces of evidence of the same form, e.g. testimonies. Corroborative evidence refers to pieces of evidence of different forms, e.g. object and testimonial.

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8.

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Prima facie and Conclusive Evidence Prima facie

Conclusive Class of evidence which the law does not allow to be contradicted [2 Regalado 703, 2008 Ed.] Note: This statement refers only to the second part of the definition of conclusive evidence (i.e., its exclusionary feature).

Standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed [2 Regalado 703, 2008 Ed.]

The first part refers to the fact that a rule of law has provided that it constitutes factum probans that sufficiently establishes the factum probandum without need of any other evidence [Prof. Avena] e.g. (1) The decree of registration and the certificate of title issued shall become incontrovertible, upon the expiration of the oneyear 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]; (2) 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, and by providing that this factum probandum subsists “although the mother may have declared against its legitimacy or may have been sentenced as an adulteress,” Art. 167 is in effect saying that any factum probans presented and offered to prove the truth of the latter declaration (of the mother) will be inadmissible in evidence.

e.g. official records such as Police blotter [Sec. 44, Rule 130; public documents such as notarial register [Sec. 23, Rule 132]

9. Disputable and Conclusive

Presumption

a.

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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 (the latter being a presumption that is satisfactory if uncontradicted, but which may be contradicted and overcome by other evidence).

b.

Sources of above presumptions other than the Rules of Court: 1. law 2. SC issuances

10. Primary and Secondary

Evidence

Primary evidence is that which the law regards as affording the greatest certainty of the fact in question [1 Regalado 703, 2010 Ed.]

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Examples of primary evidence The filiation of legitimate children is established by any of the following a. The record of birth appearing in the civil register or a final judgment; or b. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be roved by: a. The open and continuous possession of the status of a legitimate child; or b. Any other means allowed by the Rules of Court and special laws [Art. 172, FC] Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children [Par. 1, Art. 175, FC]

De la Cruz v. Gracia, G.R. No. 177728, July 31, 2009 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence. Best Evidence Rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself [Sec. 3, Rule 130]

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authentic document, or by the testimony of witnesses in the order stated [Sec. 5, Rule 130] b. If the document is in the custody of under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss [Sec. 6, Rule 130] c. When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof [Sec. 7, Rule 130] Generic, non-technical term “best evidence” as used in Vitarich A receipt, which is a written and signed acknowledgment that money and goods have been delivered, is the best evidence of the fact of payment although not exclusive [Vitarich v. Losin, G.R. No. 181560 (2010)] In using the term “best evidence”, the SC in Vitarich is referring to probative weight, not to admissibility. The term “not exclusive” in Vitarich means that the term “best evidence” in the same case is not intended to be exclusionary. Lastly, in another case, the SC ruled that a statement in a written instrument regarding the payment of consideration is merely in the nature of a receipt and may be contradicted [Philippine Banking Corporation v. C.A., G.R. No. 133710 (2004)]. The receipt in the Philippine Banking case was not excluded as evidence, but was not given much weight. The respondentdefendant in Philippine Banking denied receiving the loan proceeds and presented evidence that on the day the bank claimed to have credited the subject amount, it was again debited or withdrawn by the bank, admittedly upon the instruction of the officials from the bank’s head office.

Secondary evidence In the context of the Best Evidence rule in Sec. 3, Rule 130, secondary evidence may be admitted a. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some

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B. Admissibility of Evidence 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)] 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)] 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.] Evidence is admissible when it is relevant to the issue and is not excluded by the law or the rules or is competent [Sec. 3, Rule 132]. 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)] The admissibility of evidence cannot be ruled upon in a preliminary investigation. In a preliminary investigation, ... the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof, and should be held for trial.

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To emphasize, “a preliminary investigation is merely preparatory to a trial[;] [i]t 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)].

1. Requisites for Admissibility a. Relevant to the issue; and b. Not excluded by law or the ROC [Sec. 3, Rule 128] The second item is called “competence” [2 Regalado 704, 2008 Ed.] 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)] Objection a. Objection to evidence offered orally must be made immediately after the offer is made. 1. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. 2. Documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. [Sec. 35, Rule 132] b. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. c. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. d. In any case, the grounds for the objections must be specified. [Sec. 36, Rule 132] Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility have become apparent, otherwise the objection shall be considered waived [Abrenica v. Gonda, G.R. No. L10100 (1916)]

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Testimonial evidence

Object or real evidence

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When objection made Objection to the qualification of the witness must be made at the time he is called to the stand If the witness is qualified, the objection should be raised when the objectionable question is asked or after the answer is given if the objectionable feature became apparent by reason of such answer Must be made either: a. At the time it is presented in ocular inspection or demonstration, or b. When it is formally offered

Documentary At the time it is formally offered evidence [2 Regalado 705, 2008 Ed.]

2. 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.] General rule: Evidence on collateral matters is NOT allowed [Sec. 4, Rule 128] 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.]

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Example In an administrative case for sexual harassment, the respondent did not offer evidence that has a bearing on the complainant’s chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. These pieces of evidence do not establish the probability or improbability of the offense charged [Civil Service Commission v. Belagan, G.R. No. 132164 (2004)] Note: The SC in this case discussed Sec. 51(a), Rule 130 (character evidence in criminal cases) in relation to relevance but after the above-quoted statement clarifies, “Obviously, in invoking the above provision, what respondent was trying to establish is Magdalena’s lack of credibility and not the probability or the improbability of the charge. In this regard, a different provision applies” (i.e. Sec. 11, Rule 132). .

3. Multiple Admissibility Where the evidence is relevant and competent for two or more purposes, such evidence should be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefor [2 Regalado 706, 2008 Ed.] 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, its failure to satisfy some other rule which would be applicable to it if offered for another purpose does not exclude it. Thus, a confession of an accused may not be competent as against his co-accused, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being established by other evidence, nonetheless, the confession of the accused may be admitted as evidence of his own guilt [Francisco 11, 1996 Ed.]

4. Conditional Admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on condition that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out [2 Regalado 705, 2008 Ed.]

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beyond reasonable doubt [People v. Matito, G.R. No. 144405 (2004)]

5. Curative Admissibility A party has the right to introduce incompetent evidence in his behalf where the court has admitted incompetent evidence adduced by the adverse party, [2 Regalado 706, 2008 Ed.] What determines the rule of curative admissibility a. Whether the incompetent evidence was seasonably objected to - Lack of objection to incompetent evidence constitutes waiver by the party against whom it was introduced but the opposing party is not deprived of his right to similar rebutting evidence; and b. Whether the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted [2 Regalado 707, 2008 Ed.]

6. Direct and Circumstantial

Evidence

Direct evidence Proves the fact in dispute without the aid of any inference or presumption

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Circumstantial evidence Proof of facts from which, taken collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence

[Francisco 2, 1996 Ed.] Circumstantial evidence is the evidence of collateral facts or circumstances from which an inference may be drawn as to the probability or improbability of the fact in dispute. They are evidence of relevant collateral facts [2 Regalado 708, 2008 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] The totality of the evidence must constitute an unbroken chain showing the guilt of the accused

Note: Circumstantial evidence is not a weaker form of evidence vis-a-vis direct evidence [People v. Matito, G.R. No. 144405 (2004)]

7. Positive and Negative

Evidence

Positive Negative evidence evidence Witness affirms Witness states he/she did that a fact did or not see or know of the did not occur occurrence of a fact [2 Regalado 703, 2008 Ed.]

8. Competent and Credible

Evidence

Competence Evidence is competent when it is not excluded by (i) law or (ii) the ROC [Sec. 3, Rule 128; 2 Regalado 704, 2008 Ed.] Determined by the prevailing exclusionary rules of evidence [2 Regalado 704, 2008 Ed.] Note: Exclusionary rules may affect due process. To the extent that they might prejudice substantive rights, therefore, they cannot be made to apply retroactively. EXCLUSIONARY RULES OF EVIDENCE a. Constitutional exclusionary rules 1. Unreasonable searches and seizures [Sec. 2, Art. III] 2. Privacy of communication and correspondence [Sec. 3, Art. III] 3. 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 [Sec. 12, Art. III] 4. Right against self-incrimination [Sec. 17, Art. III] 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.”

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device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any judicial/quasijudicial/legislative/administrative hearing or investigation [Secs. 1 and 4, R.A. 4200 (WireTapping Act)]

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.”

People v. Paris, G.R. No. 218130 (2018)

Fernandez testified that he was brought to the Binmaley Police Station at 6:00 a.m. on June 16, 2011 and was asked if he was the one responsible for the crime and if he would rather admit the same. Despite the fact that he was already considered as a suspect of the crime, Fernandez was not assisted by a lawyer at that time. Atty. Francisco only arrived past 1:00 p.m. after Fernandez had already been subjected to questioning by the police officers starting 6:00 a.m. Thus, prior to 1:00 p.m., while Fernandez was in the custody of the Binmaley police and under investigation as a suspect, he was not able to confer with any lawyer. Moreover, Atty. Francisco was not an independent counsel. Atty. Francisco was a legal consultant in the Office of the Municipal Mayor of Binmaley. As such, his duty was to provide legal advice to the Mayor whose duty, in turn, is to execute the laws and ordinances and maintain peace and order in the municipality. Atty. Francisco cannot be considered as an independent counsel since protecting the rights of Fernandez as a suspect is in direct conflict with his duty to the Municipal Mayor and the local government of the Municipality. Atty. Francisco was not vigilant in protecting the rights of Fernandez during the course of the custodial investigation. Atty. Francisco allowed Fernandez to answer each question without reminding him that he can refuse to answer them and/or remain silent.

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The use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those “device(s) or arrangement(s)" enumerated therein, following the principle that "penal statutes must be construed strictly in favor of the accused.” [Ganaan v. IAC, 145 SCRA 112] Under the ROC, Rule 130 is the applicable rule in determining the admissibility of evidence. d. Court issuances, such as 1. Rule on Electronic Evidence, e.g. compliance with authentication requirements for electronic evidence 2. Rule on Examination of a Child Witness, e.g. sexual abuse shield rule 3. Judicial Affidavit Rule c.

Competence Eligibility of evidence to be received as such

Credibility Worthiness of belief; “believability”

Note: Credibility does not, per se, exclude. It only does in so far as it makes the piece of evidence irrelavant to the fact in issue. (e.g. the cross-examination of a witness is primarily about his credibility)

b. Statutory exclusionary rules 1. 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]; 2. 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 Page 411 of 481

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established any factum probandum in the first place [Prof. Avena]

C. 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 claim or defense by the amount of evidence required by law [Sec. 1, Rule 131] In civil cases, the quantum of evidence required to sustain the proponent of an issue is preponderance of evidence [Sec. 1, Rule 133] The burden of proof is on the party who would be defeated if no evidence were given on either side [2 Regalado 816, 2008 Ed.], the plaintiff with respect to his complaint, the defendant with respect to his counterclaim, and the crossclaimant, with respect to his cross-claim. In criminal cases: • For the issuance of warrant of arrest - evidence of probable cause that there exist a reasonable ground that the accused has committed an offense [Algas v. Garrido, A.M.289-MJ, (1974)) • To warrant the filing of an information – if there is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Sec. 1, Rule 112] • To sustain a conviction - evidence of guilt beyond reasonable doubt [Sec. 2, Rule 133] • To deny bail when discretionary – when the evidence of guilt is strong • To accept a plea of guilty to a capital offense – that the accused voluntarily and fully comprehended the consequences of his plea [Sec. 3, Rule 116] • To grant demurrer to evidence – the evidence is insufficient to sustain a conviction [Sec. 23, Rule 119] The burden of proof rests on the prosecution [Boac v People, G.R. No. 180597 (2008)] A party will have the burden of evidence only (i.e., will have to be a proponent) 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. That factum probandum may, but does not have to be, nor is limited to a "prima facie presumption." Likewise, a party will not have any burden of evidence at all if the adverse party has not

The burden of proof does not shift as it remains throughout the trial with the party upon whom it is imposed; the burden of evidence shifts from party to party depending upon the exigencies of the case in the course of the trial [2 Regalado 816, 2008 Ed., see Bautista v. Sarmiento, G.R. No. L-45137 (1985)] 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 proof [Rivera v. C.A., G.R. No. 115625 (1998); Marubeni v. Lirag, G.R. No. 130998, (2001)] 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)]

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D. Presumptions

Realty, G.R. No. 144268 (2006)]

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. Presumptions embody values and revealed behavioral expectations under a given set of circumstances [University of Mindanao, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 194964-65 (2016)] A rule of law that attaches probative value to specific facts, or directs that an inference be drawn as to existence of a fact, not actually known, arising from its usual connection with other particular facts which are known or established [Francisco at 51] A presumption can rest only upon ascertained facts. It cannot be based on other presumptions, assumptions, probabilities or inferences [ibid. At 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; essentially an inference e.g. Inference of guilt upon discovery of bloodied garment in possession of accused

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 common logic or probability e.g. Presumption of innocence in favor of the accused

Conclusive 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

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Disputable Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence [Sec. 3, Rule 131]

1. Conclusive Presumptions a.

A party is not permitted falsify a thing whenever: 1. By his own declaration, act or omission; 2. He intentionally and deliberately led another to believe a particular thing is true; 3. To act upon such belief; and 4. The litigation arises out of such declaration act or omission. b. A 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 [Sec. 2, Rule 131] 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)]

2. 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 voluntary act; d. Person takes ordinary care of his 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;

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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; j. 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; k. Person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; l. Person acting in a public office was regularly appointed or elected to it; m. Official duty has been regularly performed; n. A court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; o. All the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; p. Private transactions have been fair and regular; q. Ordinary course of business has been followed; r. There was a sufficient consideration for a contract; s. Negotiable instrument was given or indorsed for a sufficient consideration; t. An indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; u. A writing is truly dated; v. Letter duly directed and mailed was received in the regular course of the mail; w. Presumptions concerning absence: 1. Ordinary but continued absence of: a. 7 years, it being unknown WON the absentee still lives, he is considered dead for all purposes, except for those of succession b. 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 succession c. 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

x. y. z. aa. bb.

cc.

dd.

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death, an absence of only 2 years shall be sufficient for remarriage 2. Qualified absence – The following shall be considered dead for all purposes including the division of the estate among the heirs i. 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 ii. A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years iii. A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact Things have happened according to the ordinary course of nature and the ordinary habits of life Persons acting as co-partners have entered into a contract of co-partnership; A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; 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; 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; 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

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Presumption Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage

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After 180 days following the celebration of the subsequent marriage

EVIDENCE

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.

ee. A thing once proved to exist continues as long as is usual with things of the nature; ff. The law has been obeyed; gg. A printed/published book, purporting to be printed/published by public authority, was so printed/published; hh. 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; ii. A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; jj. 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 it can be inferred, The survivorship is determined from the probabilities resulting from the strength and the age of the sexes: Person Situation presumed to have survived Both < 15 y/o The older Both > 60 y/o The younger One < 15 y/o, The one < 15 the other > 60 y/o Both > 15 and < 60 y/o, of The male different sexes Both > 15 and <60 y/o, of The older the same sex One < 15 or > 60 y/o, and The one between the other between those ages those ages kk. 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. In the absence of proof, they shall be considered to have died at the same time. [Sec. 3, Rule 131]

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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 allegation [Sec. 4, Rule 131] The application of disputable presumptions on a given circumstance must be based on the existence of certain facts on which they are meant to operate [University of Mindanao, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 194964-65 (2016)] MCMP contends that the Contract presented by Monark is not the contract that they entered into. Yet, it has failed to present a copy of the Contract even despite the request of the trial court for it to produce its copy of the Contract. Normal business practice dictates that MCMP should have asked for and retained a copy of their agreement. Thus, MCMP's failure to present the same and even explain its failure gives rise to the disputable presumption adverse to MCMP that "evidence willfully suppressed would be adverse if produced [MCMP Construction v. Monark Equipment, G.R. No. 201001 (2014)] 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)] 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)] 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)]

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There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence [Poe-Llamanzares v. COMELEC, G.R. No. 221697 (2016)]

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E. Liberal Construction of the Rules of Evidence 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] Rules on Electronic Evidence shall likewise be liberally construed [Sec. 2, Rule 2, Rules on Electronic Evidence]

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F. Quantum of Evidence (Weight and Sufficiency of Evidence) 1. Proof beyond Reasonable

Doubt

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof 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)]

2. 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. DMC-Urban 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: a. All the facts and circumstances of the case; b. 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; c. Number of witnesses (although preponderance is not necessarily with the greater number) [Sec. 1, Rule 133]

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3. Substantial Evidence a.

Degree of evidence required in cases filed before administrative or quasi-judicial bodies b. Definition: Amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. [Sec. 5, 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)]

4. Clear and Convincing

Evidence

The standard of proof required in granting or denying bail in extradition cases is “clear and convincing evidence” that the potential extradee 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)]

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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)] Clear and convincing evidence is more than mere preponderance, but not to extent of such certainty as is required beyond reasonable doubt as in criminal cases [Manalo v. Roldan-Confesor, G.R. No. 102358 (1992)]

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G. 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. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed [Republic v. Sandiganbayan, G.R. No. 166859, (2011)]

a. When Mandatory 1. 2. 3. 4. 5. 6. 7. 8. 9.

Existence and territorial extent of states; Their political history, forms of government, and symbols of nationality; Law of nations; Admiralty and maritime courts of the world and their seals; Political constitution and history of the Philippines; Official acts of the legislative, executive and judicial departments of the Philippines; Laws of nature; Measure of time; and Geographical divisions [Sec. 1, Rule 129]

Note: Even if not raised or alleged by petitioner, courts should take mandatory judicial notice of an amendment to the Rules of Court [Siena Realty v. Gallang, G.R. No. 145169 (2004)] The Management Contract entered into by petitioner and the PPA is clearly not among the matters which the courts can take judicial notice of. It cannot be Page 418 of 481

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considered an official act of the executive department. The PPA was only performing a proprietary function when it entered into a Management Contract with petitioner. As such, judicial notice cannot be applied [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 of 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.

12435 (1917); U.S. v. Hernandez, G.R. No. 9699 (1915)] Note: 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. Morever, 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 [Riano 76-77, 2016 Ed.]

c. When Hearing Necessary

b. When Discretionary 1. 2.

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Matters of public knowledge; Matters capable of unquestionable demonstration; and 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; 3. It must be known to be within the limits of the jurisdiction of the court [State Prosecutors v, Muro, A.M. No. RTJ-92-876 (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. Judicial cognizance is taken only of those matters which are "commonly" known [State Prosecutors v, Muro, A.M. No. RTJ-92-876 (1994)] With Respect to Ordinances Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit [2 Regalado 833, 2008 Ed.] Regional Trial Courts must take judicial notice of such ordinances only: 1. When required to do so by statute e.g. in Manila as required by the city charter [City of Manila v. Garcia, et al., G.R. No. L-26053 (1967)]; and 2. In a case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in said case [U.S. v. Blanco, G.R. No.

During the Trial The court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon [Sec. 3, Rule 129] After the Trial and Before Judgment or on Appeal The proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case [Sec. 3, Rule 129] 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)]

d. With Respect to Records of Other Cases General rule: Courts are not authorized to take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge [Prieto v. Arroyo, G.R. No. L17885 (1965)] 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

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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)] Courts cannot take judicial notice that vehicular accidents cause whiplash injuries [Dela Llana v Biong, G.R. No. 182356 (2013)] 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. The offense of rape can and has been committed in places where people congregate, e.g. inside a house where there are occupants, a five (5) meter room with five (5) people inside, or even in the same room which the victim is

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sharing with the accused's sister [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 such as human beings. 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 the property. Considering that the subject land was more than 4 million square kilometers, RTC acted properly when it took judicial notice of the total area of the property involved and the prevailing assessed value of the titled property, and it would also be at the height of absurdity if the assessed value of the property with such an area is less than P20,000 [Bangko Sentral ng Pilipinas v. Legaspi, G.R. No. 205966 (2016)] The Court may not take judicial notice of contracts entered into by GOCCs in the exercise of their proprietary function. These cannot be considered an official act of the executive department [Asian Terminals v. Malayan Insurance, G.R. No. 171406 (2011)]

3. Judicial Admissions In General To be a judicial admission, the same: a. Must be made by a party to the case; b. Must be made in the course of the proceedings in the same case; and c. May be verbal or written [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 another 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,

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b. in the course of the trial, either by verbal or written manifestations or stipulations, or c. in other stages of the judicial proceeding; as in the pre-trial of the case. Admissions obtained through depositions, written interrogatories or requests for admission are also considered judicial admissions [2 Regalado 836-837, 2008 Ed.] Examples of item (c) above are 1. Stipulations of facts by the parties in a pre-trial conference. See People v. Hernandez [G.R. No. 108028 (1996)] 2. Motions, see Republic v. de Guzman, G.R. No. 175021 (2011), where allegations made in a motion to dismiss were considered to be, among others requiring denial by the adverse party and absence of such led to the application of Sec. 4, Rule 129 Note: a. Sec. 8, Rule 10 provides that “[a]n amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader.” Thus, admissions in superseded pleadings have to be “received in evidence” precisely because they become extrajudicial 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. b. Admissions made by a party pursuant to a request for admission is for the purpose of the pending action only [Sec. 3, Rule 26] c. 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, nonultimate facts in the pleading [Sec. 1, Rule 8] as well as the amount of liquidated damages [Sec. 11, Rule 8] [Riano 89, 2016 Ed.]

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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 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. His silence on this and other related suggestions can be taken as an admission by him [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)]

a. Effect of Judicial Admissions It does not require proof and CANNOT be contradicted [Sec. 4, Rule 129] An original complaint, after being amended, loses its character as a judicial admission, which would have required no proof. It becomes merely an extra-judicial admission requiring a formal offer to be admissible [Torres v. C.A., G.R. No. L-37420, (1984)] 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)] 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. A

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judicial admission also removes an admitted fact from the field of controversy. 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. No such admission was made [Sec. 4, Rule 129] 3. In the case of a pre-trial admission in civil cases, to prevent manifest injustice [Sec. 7, Rule 18]; or 4. 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] 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)]

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4. Judicial Notice of Foreign

Laws, Law of Nations and Municipal Ordinance

FOREIGN LAWS General rule: Courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yao-Kee v. Sy-Gonzales, G.R. No. L-55960 (1988)] Written foreign law may be proved by: a. An official publication; or b. A duly attested and authenticated copy [Sec. 24, Rule 132] Attested copy a. Attestation must be made by the officer having legal custody of the record or by his deputy [Sec. 24, Rule 132] 1. It must state, in substance, that the copy is a correct copy of the original, or a specific part thereof [Sec. 25, Rule 132] 2. It must be under the official seal of the attesting officer, if there be any, or if he be a clerk of court having a seal, under the seal of such court [Sec. 25, Rule 132] b. It must be accompanied by a certificate that attesting officer has custody. The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office [Sec. 24, Rule 132] Unwritten foreign law Where the foreign law sought to be proved is "unwritten," the oral testimony of expert witnesses is admissible, as are printed and published books of reports of decisions of the courts of the country concerned if proved to be commonly admitted in such courts [Wildvalley Shipping Co., Ltd. v. C.A., G.R. No. 119602 (2000)] Doctrine of Processual Presumption In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case [Northwest Orient Airlines v. C.A., G.R. No. 112573 (1995)]

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The court may take judicial notice of the foreign law a. Where the foreign law is within the actual knowledge of the court such as when the law is well and generally known such as when they are well and generally known or they had been ruled upon in other cases before it and none of the parties claim otherwise [PCIB v Escolin G.R. L27860 and L-27896 (1974], citing Moran] b. When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [Sec. 46, Rule 130] Law Of Nations The Philippines adopts the generally accepted principles of international law as part of the law of the land [Sec. 2, Art. II, Constitution]

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H. Object (Real) Evidence 1. Meaning 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 y Guinto, G.R. No. 131516 (2003)] An ocular inspection of the body of the accused is permissible [Villaflor v. Summers, G.R., No. 16444 (1920)]

Being part of the law of the land, they are therefore in the nature of local laws, and hence, subject to mandatory judicial notice under Sec. 1 of Rule 129.

The right against self-incrimination cannot be invoked against object evidence [People v. Malimit, G.R. No. 109775 (1996)]

MUNICIPAL ORDINANCE

2. Requisites for Admissibility

Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit [2 Regalado 833, 2008 Ed.] Regional Trial Courts must take judicial notice of such ordinances only: a. When required to do so by statute e.g. in Manila as required by the city charter [City of Manila v. Garcia, et al., G.R. No. L-26053 (1967)]; and b. In a case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in said case [U.S. v. Blanco, G.R. No. 12435 (1917); U.S. v. Hernandez, G.R. No. 9699 (1915)]

Basic requisites for admissibility a. Evidence must be relevant; b. Evidence must be authenticated; c. Authentication must be made by a competent witness; and d. Object must be formally offered [Sec. 34, Rule 132] [Riano 101, 2016 Ed.] 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 g. A showing that the testimony elicited was voluntarily made without any kind of inducement [Torralba v. People, G.R. No. 153699 (2005))

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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 competent witness To authenticate the object, the witness must have the capacity to identify the object as the very thing involved in the litigation A witness can testify to those facts which he/she knows of his/her personal knowledge [Sec. 36, Rule 130]

3. Categories of Object

Evidence

The “thing itself” (according to means of authentication) E.g., a caliber Objects that have Unique 45 pistol by readily identifiable objects virtue of its marks serial number E.g., a typical Objects with no kitchen knife Objects unique with identifying made characteristic but marks placed unique are made readily on it by the identifiable witness

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Nonunique objects

Objects with no identifying marks and cannot be marked

E.g., narcotic substances

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)]

4. Demonstrative Evidence Not the actual thing, rather it represents or “demonstrates” the real thing, e.g., photographs, motion pictures and recordings [Riano 102, 2016 Ed.] Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be: a. shown, presented or displayed to the court, and b. identified, explained or authenticated 1. by the person who made the recording, or 2. by some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11, Rules on Electronic Evidence]

5. View of an Object or Scene 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] The “view” is expressly authorized by Sec. 1, Rule 130 but even without this express provision, it is wellrecognized that the court has an inherent power to order a view when there is a need to do so (See Sec. 5, Rule 135.) [Riano 106, 2016 Ed.]

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The inspection or view outside the courtroom should be in 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 [5 Moran 81, 1970 Ed., cited in In re Climaco, A.C. No. 134-J (1974), Teehankee, J.]

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I. Documentary Evidence 1. Meaning of Documentary

Evidence

Consist of writings or any material containing letters, words, numbers, figures, symbols 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.

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.]

a. Rules on Electronic Evidence (A.M. No. 01-7-01-SC) An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules [Sec. 2, Rule 3]

3. Best Evidence Rule a. Meaning of the Rule When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself [Sec. 3, Rule 130]

b. When Applicable When applicable (General Rule) Only when the subject of inquiry is the contents of a document [Sec. 3, Rule 130] When not applicable When the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution [People v Tandoy, G.R. No. 80505, (1990)]

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Hence, the Best Evidence Rule applies only when the terms of a writing are in issue. When the evidence sought to be introduced concerns external facts, such as the existence, execution or delivery of the writing, without reference to its terms, the Best Evidence Rule cannot be invoked. In such a case, secondary evidence may be admitted even without accounting for the original. The Best Evidence Rule was not applicable because the terms of the deed of sale with right to repurchase were not the issue [Heirs of Prodon v. Alvarez, G.R. No. 170604 (2013)] 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 does not apply and testimonial evidence is admissible. [Republic v. Gimenez, G.R. No. 174673 (2016)] 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 does not apply and testimonial evidence is admissible. 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]

c. Meaning of Original Document 1.

The original of a document is one the contents of which are the subject of inquiry. 2. When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. [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)] The picture images of the ballots, as scanned and recorded by the PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by the voter, as defined by Sec. 2(3) of RA 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters

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and, thus, may be used for purposes of revision of votes in an electoral protest [Vinzons-Chato v. House of Representatives Electoral Tribunal, G.R. No. 199149 (2013)]

d. Requisites for Introduction of Secondary Evidence 1.

When the original has been lost or destroyed, or cannot be produced in court a. When the original has been lost or destroyed, or cannot be produced in court; b. Upon proof of its execution or existence; c. Without bad faith on the offeror’s part [Sec. 5, Rule 130] Proponent must prove due execution or existence, and the cause of the loss, destruction or unavailability of the original [Sec. 5, Rule 130] and reasonable diligence and good faith in the search for/attempt to produce the original [Tan v. C.A., G.R. No. L-56866 (1985)] A photocopy, being merely secondary evidence, is not admissible unless it is shown that the original is unavailable. Pursuant to Sec. 5, Rule 130, before a party is allowed to adduce secondary evidence to prove the contents of the original, it is imperative that the offeror must prove: • the existence or due execution of the original; • the loss and destruction of the original or the reason for its non-production in court; and • on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. Hence, the correct order of proof is existence, execution, loss, and contents. [Republic v. Cuenca, G.R. No. 198393 (2018)] ALL duplicates or counterparts must be accounted for before using copies [De Vera v. Aguilar, GR. No. 83377 (1993)] 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

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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)) What to present instead (in this order) a. By a copy b. By a recital of its contents in some authentic document c. By the testimony of witnesses [Rule 130, Sec. 5] 2. When the original is in the custody or under the control of the party against whom it is offered, and the latter fails to produce it after reasonable notice What to present instead Same as when lost, destroyed, or cannot be produced in court [Sec. 6, Rule 130] 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sounds to be established from them is only the general result of the whole 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 instead Certified copy issued by the public officer in custody thereof 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. 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.]

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a. Application of the Parol Evidence Rule 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, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement [Sec. 9, Rule 130] 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. L-39972 & L-40300 (1986)] The parol evidence rule does not apply to those who are not parties to the deed and do not base a claim on it. Hence, the party cannot be prevented from seeking evidence to determine the complete terms of the deed of assignment. [Eagleridge Development Corp. v. Cameron Granville, G.R. No. 204700 (2014)] 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)]

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 the pleading [Sec. 9, Rule 130] Exception: Even if it is not explicitly stated in the words of the law, 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)] 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

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4.

EVIDENCE

Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT Intrinsic ambiguity – writing admits of two constructions both of which are in harmony with the language used [Ignacio v. Rementeria, 99 Phil. 1054 (Unrep.)] 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 admisaible to clarify the ambiguity [2 Regalado 734, 2008 Ed., citing 20 Am. Jur 1011] Mistake refers to mistake of fact which is mutual to the parties [BPI v. Fidelity and Surety, Co., G.R. No. L26743 (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.] 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)] 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.] EXISTENCE OF OTHER TERMS AGREED TO BY THE PARTIES OR THEIR

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SUCCESSORS IN INTEREST AFTER THE EXECUTION OF THE WRITTEN AGREEMENT.

c. Distinction between the Best Evidence Rule and Parol Evidence Rule Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of WON it varies the contents of the original Applies to all kinds of writings

Can be invoked by any party to an action regardless of WON such party participated in the writing involved

Parol Evidence Rule Presupposes that the original document is available in court

Prohibits the varying of the terms of a written agreement Applies only to documents contractual in nature and to wills 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.] COLLATERAL AGREEMENTS General rule: Parol Evidence Rule applies (i.e., no evidence of such terms other than the contents of the written agreement) [Sec. 9, Rule 130] Exceptions: 1. Collateral agreement is not inconsistent with the terms of the written contract [Robles v. Lizarraga Hermanos, G.R. No. 26173 (1927)] 2. Collateral agreement has not been integrated in and is independent of the written contract 3. Collateral agreement is subsequent to [Filpinas Manufacturers Bank v. Eastern Rizal Fabricators, G.R. No. 62741 (1987)] or novatory of the written contract [Canuto v. Mariano, G.R. No. 11346 (1918)]

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4.

Collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective [Peabody & Co. v. Bromfield, G.R. No. 13510 (1918)], but this exception does not apply to a condition subsequent not stated in the agreement [2 Regalado 730, 2008 Ed.]

5. Authentication and Proof of

Documents

a. Meaning of authentication The preliminary step in showing the admissibility of evidence Proving that the objects and documents presented in evidence are not counterfeit

b. Public and Private Documents Private Documents When offered as authentic, due execution and authenticity must be proved [Sec. 20, Rule 132]

Public Documents Admissible without further proof of its due execution and authenticity

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. Public records, kept in the Philippines, of private documents required by law to be entered therein 3. Notarial documents (except last wills and testaments) [Sec. 19, Rule 132] All other writings are private [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)]. Note: Compare this statement with: 1. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the

2.

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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. 20, Rule 132] Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved [Sec. 30, Rule 132]

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 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 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; or 2. By evidence of the genuineness of the signature or handwriting of the maker [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)]

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Private documents in the custody of PCGG are not public documents. What became public are not the private documents (themselves) but the recording of it in the PCGG. 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)]

3.

Additional Modes of Authentication under American Jurisprudence 1. Doctrine of Self-Authentication – Where the facts in writing could only have been known by the writer 2. Rule of Authentication of the adverse party – Where the reply of the adverse party refers to and affirms the transmittal to him and his receipt of the letter in question, a copy of which the proponent is offering as evidence [2 Regalado 859, 2008 Ed.]

1.

d. When Evidence of Authenticity of a Private Writing is Not Required (Ancient Documents)

3.

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.

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]

OTHER INSTANCES WHEN AUTHENTICATION IS NOT REQUIRED 1. Writing is a public document/record [Sec. 19, Rule 132] 2. Notarial document acknowledged, proved/certified [Sec. 30, Rule 132]

4.

When authenticity and due execution has been admitted as in the case of actionable documents under Sec. 8, Rule 8 That which it is claimed to be: Authentication not necessary [Sec. 20, Rule 132]

e. How to Prove Genuineness of a Handwriting

2.

By any witness who believes it to be the handwriting of such person because: a. he has seen the person write; or b. he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Sec. 22, Rule 132] 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] Expert evidence [Sec. 49, Rule 130]

f. Public Documents as Evidence; Proof of Official Records

Proof of official record referred to in Sec. 19(a), Rule 132 1. By an official publication thereof; or 2. By an attested copy of the document Note: Documents without documentary stamp affixed thereto, unless specifically exempted by law, may not be admitted or used in evidence in any court until the requisite stamp shall have been affixed [Sec. 201, NIRC] Also, there is a presumption that the requisite stamps have been affixed in the original copy when only the carbon copies of the same is available [Mahilum v. C.A., G.R. No. L-17666 (1966))

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g. Attestation of a Copy of a Document or Record

h. Public Record of Private Documents

1.

1. 2.

2. 3.

Must be made by the officer having the legal custody of the record, or by his deputy [Sec. 24, Rule 132] Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be [Sec. 25, Rule 132] Must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court [Sec. 25, Rule 132]

If the record is not kept in the Philippines, attested copy must be accompanied with a certificate, which: 1. May be made by a secretary of the embassy/legation, consul-general, consul, viceconsul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept; 2. Must state that such officer has the custody; and 3. Must be authenticated by the seal of his office [Sec. 24, Rule 132] Exception: The United States Agency for International Development (USAID) is the principal United States agency to extend assistance to countries recovering from disaster, trying to escape poverty, and engaging in democratic reforms. It is an independent federal government agency that receives over-all foreign policy guidance from the Secretary of the State. Given this background, it is highly improbable that such an agency will issue a certification containing unreliable information regarding an employee’s income. Besides, there exists a presumption that official duty has been regularly performed. Absent any showing to the contrary, it is presumed that Cruz, as Chief of Human Resources Division of USAID, has regularly performed his duty relative to the issuance of said certification and therefore, the correctness of its contents can be relied upon. This presumption remains especially so where the authenticity, due execution and correctness of said certification have not been put in issue either before the trial court or the CA [Heirs of Ochoa v. G&S Transport, G.R. No. 170071 (2011)]

By the original record; or By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody [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 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 office 2. Certificate a. Accompanying the written statement b. Must state that that such officer has the custody [Sec. 28, Rule 132]

j. How Judicial Record is Impeached 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]

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Note: Last wills and testaments are not public documents [Sec. 19, Rule 132]

J. Testimonial Evidence

l. How to Explain Alterations in a Document

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 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 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] The OCT written in the Spanish language already formed part of the records of the case for failure of the adverse parties to interpose a timely objection when it was offered as evidence. Any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent and admitted 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. 20, Rule 130] Qualifications of a Witness a. To observe, the testimonial quality of perception; [Sec. 20, Rule 130] b. To remember, the testimonial quality of memory; c. To relate, the testimonial quality of narration; [Sec. 20, Rule 130] d. To recognize a duty to tell the truth, the testimonial quality of sincerity; [Sec. 1, Rule 132] e. He must not possess any of the disqualifications imposed by the law or rules [Sec. 20, Rule 130] [Herrera] 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 non-disqualified parties. The law does not provide 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 are produced for examination or at the taking of their depositions.

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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

2. Competency v. Credibility of

a Witness

COMPETENCY 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 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 Credibility of a witness is a question of fact, which is not reviewable by the Supreme Court [Addenbrook v. People, G.R. No. L-22995 (1967)]

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Competency Distinguished from Credibility Competence Credibility A matter of law and of Has nothing to do rules with the law or rules Refers to the basic qualifications of a witness Refers to the weight as his capacity to perceive and trustworthiness and his capacity to or reliability of the communicate his testimony perception to others Two Kinds of Incompetency to Testify Absolute Partial Forbidden to testify only on certain matters specified under Secs. Forbidden to testify on 22-23, Rule 130 due to any matter interest or relationship, or to privileges of the parties [Herrera] Incompetence and Privilege Incompetence Privilege Excuses a witness from Disqualifies a witness testifying [Herrera]

3. Disqualifications of

Witnesses

Effect of Interest In The Subject Matter A person is not disqualified (except if covered by the Dead Man’s statute) Interest only affects credibility, not competency. 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: 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)]

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be capable of verification [People v. Hayag, G.R. No. L38635 (1980)]

a. DQ by Reason of Mental Capacity or Immaturity The following persons cannot be witnesses: 1. Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; 2. Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully [Sec. 21, Rule 130] When incapacity matters for disqualification In case of Sec. 21(a): At the time of their production for examination In case of Sec. 21(b): At the time of perception (“perceiving the facts”) and of examination (“relating them truthfully”) Presumption of sanity General rule: The law presumes that every person is of sound mind, in the absence of proof to the contrary [Art. 800, Civil Code] Exception: if the witness is a lawful inmate of an asylum for the insane [Herrera citing Torres v. Lopez (1926)] A mental retardate is not therefore, per se, disqualified from being a witness. As long as his senses can perceive facts and if he can convey his perceptions in court, he can be a witness [People v. Española, G.R. No. 119308 (1997), citing People v. Salomon, G.R. No. 96848 (1994)] Unsound mind 1. Includes any mental aberration (organic/functional), induced by drugs/hypnosis 2. Not disqualified as long as the witness can convey ideas by words/signs Deaf-Mutes Deaf-mutes are competent witnesses where they have sufficient knowledge to understand and appreciate the sanctity of an oath and comprehend the facts as to which they wish to speak, and are capable of communicating their Ideas with respect thereto [People v. Hayag, G.R. No. L-38635 (1980)] They may give evidence by signs, or through an interpreter or in writing, and such testimony, through an interpreter, is not hearsay. But sign language must

Child Witness The competency of a child witness is determined by his capacity for observation, recollection and communication [People v. Mendoza, G.R. No. 113791 (1996)] Under the Rule on Examination of a Child Witness (A.M. No. 004-07-SC, 15 December 2000), every child is now presumed qualified to be a witness. To rebut this presumption, the burden of proof lies on the party challenging the child’s competency. Only when substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court will the court, motu proprio or on motion of a party, conduct a competency examination of the child. [People v. Esugon, G.R. No. 195244 (2015)]

b. DQ by Reason of Marriage Also known as Martial Disqualification Rule [Alvarez v. Ramirez, G.R. No. 143439 (2005)] or Spousal Immunity Elements 1. During their marriage 2. Neither the husband nor the wife 3. May testify for or against the other 4. Without the consent of the affected spouse [Sec. 22, 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/ascendants [Sec. 22, Rule 130] Rationale 1. There is identity of interests between husband and wife; 2. If one were to testify for or 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

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[Alvarez v. Ramirez, G.R. No. 143439 (2005)]

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b. A person of unsound mind Upon a claim or demand against a. The estate of such deceased person, or b. Such person of unsound mind 4. Cannot testify as to any matter of fact occurring before a. The death of such deceased person b. Such person became of unsound mind [Sec. 23, Rule 130] 3.

Duration General rule: During the marriage [Sec. 22, 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)] Compare the occasions in which the exception was applied: 1. People v. Francisco [G.R. No. L-568 (1947)]: The wife testified against her husband after the latter, testifying in his own defense, imputed upon her the killing of their little son. 2. Alvarez v. Ramirez [G.R. No. 143439 (2005)]: The wife testified against her husband as the first witness of the prosecution. 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] 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)] Spouses as Co-Accused The other cannot be called as an adverse party witness under this Rule

c. DQ by Reason of Death or Insanity of Adverse Party Also known as Dead Man’s Statute or Survivorship Rule [Sunga v. Chua, G.R. No. 143340 (2001)] Elements 1. Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted 2. Against: a. An executor or administrator or other representative of a deceased person, or

Applicability This rule is applied only to civil cases. It is still applicable even if the property has already been judicially adjudicated to the heirs regardless whether the deceased died before or after the suit Rationale To close lips of the plaintiff when death has closed the lips of the defendant in order to discourage perjury and protect the estate from fictitious claims [Icard v. Masigan, G.R. No L-47442 (1947)] Scope Facts favorable to the deceased are not prohibited The rule does not operate to exclude testimony favorable to the deceased because the rule seeks to protect his interests [Herrera, citing Go Chi Gun v. Co Cho, G.R. No. L-13342 (1962), which cited Jones on Evidence] When the Dead Man’s statute is not applicable 1. The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence other than the testimony of the survivor [Ong Chua v. C.A.rr, G.R. No. L-29512 (1929)) 2. He may also testify where he was the one sued by the decedent’s estate since the action then is not against the estate [Tongco v. Vianzon, G.R. No. 27498 (1927)) 3. He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased [Goñi v. C.A., G.R. No. L-27434 (1986)] 4. No application to a mere witness 5. No application to nominal parties, officers and stockholders against corporations [Lichauco v. Atlantic Gulf and Pacific Co., G.R. No. L-2016 (1949)] 6. Cannot be used in a negative testimony [Mendezona v. Vda. De Goitia, G.R. No. L-31739]

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7. 8.

If the defendant did not object When the party cross-examines the witness [Goni v. C.A., G.R. No. L-27434 (1986)] 9. Where the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased [Icard v. Marasigan, G.R. No. L-47442 (1941)] 10. Agent of the deceased as to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify [Goñi v. C.A., G.R. No. L-27434 (1986)] What the Dead Man’s Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony [Sanson v. C.A., G.R. No. 127745 (2003)]

d. DQ by Reason of Privileged Communications 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] 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

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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 the 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. When the communication was overheard/comes into the hands of a third party whether legally or not [People v. C.A.rlos, G.R. No. 22948 (1925)] 4. Waiver of the privilege [Herrera] Waiver 1. Failure of the spouse to object; or 2. Calling spouse as witness on cross examination 3. Any conduct constructed as implied consent. [Herrera] 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 for or against the spouse of the witness

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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

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ATTORNEY AND CLIENT Elements As regards an attorney 1. Without the consent of his client 2. Cannot be examined as to a. Any communication made by the client to him, or b. His 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, or clerk 1. Without the consent of the client and his employer 2. Cannot be examined 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] When not applicable 1. When the communication made was not for the purpose of creating relationship (even if afterwards he become counsel) 2. When the communication was intended to be made public 3. When the communication was intended to be communicated to others 4. When the communication was intended for an unlawful purpose 5. When the communication was received from third persons not acting in behalf/as agents of clients 6. When the communication was made in the presence of third parties stranger to the attorneyclient relationship 7. When the communication has something to do with a client’s contemplated criminal act [People v. Sandiganbayan, G.R. Nos. 115439-41 (1997)] 8. When there is a controversy between the client and attorney [Herrera]

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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] PHYSICIAN AND PATIENT Elements 1. A person authorized to practice medicine, surgery or obstetrics 2. In a civil case 3. Without the consent of the patient 4. Cannot be examined as to a. Any advice or treatment given by him or b. Any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and 5. Which would blacken the reputation of the patient [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

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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 Mental or Physical Examination [Rules on Civil Procedure] [Herrera] Professional capacity When the doctor attends to a patient for curative treatment, or for palliative or preventive treatment [Herrera] Extent of rule The privilege extends to communications which have been addressed to physician’s assistants or agents [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 continues until the death of the patient. It may be waived by the personal representative of the decedent [Herrera]

REMEDIAL LAW

Essential factors to establish the existence of the attorney-client privilege communication 1. Where legal advice of any kind is sought 2. from a professional legal adviser in his capacity as such, 3. the communications relating to that purpose, 4. made in confidence 5. by the client, 6. are at his instance permanently protected 7. from disclosure by himself [Haduja vs. Madianda, A.C. No. 6711 (2007) citing Wigmore] 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)] PRIEST AND PENITENT Elements 1. A minister or priest 2. Without the consent of the person making the confession 3. Cannot be examined as to any a. confession made to or b. advice given by him 4. in his professional character 5. in the course of discipline enjoined by the church to which the minister or priest belongs [Sec. 24(d), Rule 130] This disqualification only applies if the confession is given in the context of penitence [Prof. Avena]. PUBLIC OFFICERS Elements 1. A public officer 2. During his term of office or afterwards 3. Cannot be examined as to communications made to him 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”

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1. 2. 3.

EVIDENCE

Must relate to a “quintessential and nondelegable presidential power;” Must be authored or “solicited and received” by a close advisor of the President or the President himself; and 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)). Parental and Filial Privilege Rule Sec. 25, Rule 130

Art. 215, FC

No person may be compelled to testify against his 1. Parents 2. other direct ascendants 3. children or 4. other direct descendants

No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents

NONE

Except when such testimony is indispensable in a crime 1. against the descendant or 2. by one parent against the other

Art. 315, CC (repealed by FC) No descendant can be compelled, in a criminal case, to testify against his parents and ascendants

a common ancestry. A stepdaughter has no common ancestry by her stepmother [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)] OTHER PRIVILEGED COMMUNICATION NOT IN THE RULES OF COURT 1.

The privilege cannot apply between stepmothers and stepchildren because the rule applies only to direct ascendants and descendants, a family tie connected by

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 newsreport 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]

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

NONE

Applicability The rule is applied to both civil and criminal cases [Herrera]

REMEDIAL LAW

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which as a trade secret is entitled to protection [Secs. 9, 11 (f) and 12, RA 3720]

a correct statement of such proceedings [Sec. 2, Rule 132]

TRIPS Agreement Undisclosed information or trade secrets are considered privileged communication [Air Phils. Corp. v. Penswell Inc., G.R. No. 172835 (2007)]

Exclusion and separation of witnesses The judge may a. On any trial or hearing, exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses b. Cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined [Sec. 15, Rule 132]

It is protected information if it complies with 3 requisites: a. A secret in a sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of info in question, b. Has commercial value because it is a secret; c. Has been subject to reasonable steps, under the circumstances by the person lawfully in control of the information, to keep it a secret [Art. 39, TRIPS Agreement] Electronic Document as Privileged Communication The confidential character of a privileged communication is not solely on the ground that it is in the form of an electronic document [Sec. 3, Rule 3, Rules on Electronic Evidence]

4. Examination of a Witness 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] 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

Without any motion from the opposing party or order from the court, there is nothing in the rules that prohibits a witness from hearing the testimonies of other witnesses. Since there was no order of exclusion from the RTC, there was nothing to prevent the witness from hearing the testimony of the other witness. [Eristingcol v. Design Sources International, G.R. No. 193966 (2014)] When witness may refer to memorandum a. A witness may be allowed to refresh his memory respecting a fact 1. by anything written or recorded 2. by himself or under his direction 3. at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and 4. he 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 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 retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. [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 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

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necessary to its understanding may also be given in evidence [Sec. 17, Rule 132]

secondary evidence in place of the original when allowed by existing rules. [Sec. 2]

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]

CONTENTS AND PROCEDURE

a. Judicial Affidavit Rule [A.M. 128-8-SC]

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]

SCOPE AND WHERE APPLICABLE

1.

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] Submission of Judicial Affidavits and Exhibits in Lieu of Direct Testimonies 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 prejudice to the introduction of

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]

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APPLICATION TO CRIMINAL ACTIONS PROCEDURE 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 testin1ony 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 crossexamine 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 truuth 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 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 n1arkings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. [Sec. 8]

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 fron1 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] EFFECT OF NON-COMPLIANCE Non-compliant behavior

Consequence Deemed to have waived their submission

Party’s failure to submit

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Witness’ failure to appear at the scheduled hearing Counsel’s failure to appear

Non-compliance with content and attestation requirements

EVIDENCE

REMEDIAL LAW

EFFECT ON OTHER RULES 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.

[Sec. 10] 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] 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)]

The provisions of the Rules of Court and other rules of procedure in the investigative or quasi-judicial bodies covered by this rule are repealed or modified insofar as these are inconsistent with the provisions of this Rule [Sec. 11]

5. Rights and Obligations of a

Witness

Obligation To answer questions, although his answer may tend to establish a claim against him. 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. Not to be examined except only as to matters pertinent to the issue 4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law 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 reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense [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 cross-examination for justifiable reasons [A.M. No. 03-1-09-SC]

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)]

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6. Order of Examination of an

c. Re-Direct Examination

a. Direct Examination

The witness may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. Questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion [Sec. 7, Rule 132]

Individual Witness

Examination-in-chief of a witness by the party presenting him on the facts relevant to the issue [Sec. 5, Rule 132]

b. Cross-Examination The witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom 1. to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and 2. 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)] 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)] Partial cross-examination is sufficient where the witness was cross-examined on material points, and full cross-examination was not due to prosecutors’ fault but that of the defense who repeatedly moved for postponement, direct examination cannot be thrown off the case [Herrera, citing People v. Caparas, G.R. No. L-47411 (1981)] 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)]

d. Re-Cross Examination The adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion [Sec. 8, Rule 132]

e. Recalling the Witness After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require [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)]

7. Leading and Misleading

Questions

Leading question: A question which suggests to the witness the answer which the examining party 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

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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 has previously stated. It is not allowed [Sec. 10, Rule 132] When witness considered unwilling or hostile Only if so declared by the court upon adequate showing of his a. adverse interest b. unjustified reluctance to testify, or c. having misled the party into calling him to the witness stand [Sec. 12, Rule 132] 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 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 in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. [Sec. 12, Rule 132]

8. Methods of Impeaching an

Adverse Party’s Witness

REMEDIAL LAW

Note: Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party presenting the adverse party witness must comply with Section 6, Rule 25 of the Rules of Court which provides: SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. [Ng Men Tam v. China Banking Corp., G.R. No. 214054 (2015)] In civil cases, the procedure of calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served upon the latter.

9. How the Witness is

Impeached by Evidence of Inconsistent Statements (Laying the Predicate)

a.

The statements must be related to him, with the circumstances of the times and places and the persons present, and b. He must be asked whether he 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 concerning them [Sec. 13, Rule 132]

a. By contradictory evidence; b. By evidence that his general reputation for truth, honesty or integrity is bad; c. By evidence that he has made at other times statements inconsistent with his present testimony

10. Evidence of the Good

But NOT by evidence of particular wrongful acts, EXCEPT that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense [Sec. 11, Rule 132]

Because a witness is presumed to be truthful and of good character, the party presenting him does not have to prove he is good because he is presumed to be good.

Character of a Witness

NOT admissible until such character has been impeached [Sec. 14, Rule 132]

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11. Admissions and Confessions a. Res Inter Alios Acta Rule 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. 28, Rule 130] 2. Second branch: Similar acts as evidence [Sec. 34, Rule 130] [2 Regalado 758, 774, 2008 Ed.]

b. Admission by a Party Elements 1. The act, declaration or omission 2. Of a party 3. As to a relevant fact [Sec. 26, Rule 130] 4. Against his interest (Sec. 26, Rule 130 states “may be given in evidence against him”) 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. 26, Rule 130]

REMEDIAL LAW

Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt [US v. Sarikala, G.R. No. L-12988 (1918)] Rationale No man would make any declaration against himself unless it is true [Republic v. Bautista, G.R. No. 169801 (2007)] Admission Must be Made in Context It is a rule that a statement is not competent as an admission where it does not, under reasonable construction, appear to admit or acknowledge the fact which is sought to be proved by it [CMS Logging, Inc. v. C.A., G.R. No. L-41420 (1992)] Lacbayan v. Samoy, Jr. [G.R. No. 165427 (2011)]: Issue: WON a Partition Agreement between partners having an extramarital affair is an admission against interest such that a party to it who admitted the existence of co-ownership can no longer assail the agreement. Held: No. The question on the Partition Agreement indicates a question of law to determine whether the parties have the right to freely divide among themselves the subject properties. An admission must involve matters of fact and not of law. Judicial and Extrajudicial Admissions Judicial Extrajudicial Made in connection with a judicial Any other admission proceeding in which it [Secs. 26 and 32, Rule is offered [Sec. 4, Rule 130] 129] Must still be formally offered in evidence Does not require proof (Note language of Sec. [Sec. 4, Rule 129] 26, Rule 130: “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. 26, Rule 130]

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. 28, Rule 130]

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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 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 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. 29, Rule 130] 2. Admission by conspirator [Sec. 30, Rule 130] 3. Admission by privies [Sec. 31, Rule 130] 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.

REMEDIAL LAW

Admissions by counsel Admissions by counsel are admissible against the client as the former acts in representation and as an agent of the client, subject to the limitation that the same should not amount to a compromise [Sec. 23, Rule 138] or confession of judgment [Acenas, et al. v. Sison, et al., G.R. No. L-17011 (1963)] 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 subject-matter of joint interest [Herrera] 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] Just like in partnership and agency, the interest must be a subsisting one unless for the admission to be admissible [Herrera]

d. Admission by a Co-Partner or Agent Requisites for Admissibility 1. The act or declaration 2. Of a partner or agent of the party 3. Within the scope of his authority 4. During the existence of the partnership or agency, 5. May be given in evidence against such party 6. After the partnership or agency is shown by evidence other than such act or declaration [Sec. 29, 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. 29, 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.]

e. Admission by a Conspirator Requisites for Admissibility 1. The act or declaration 2. Of a conspirator 3. Relating to 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 [Sec. 30, Rule 130] An exception to the res inter alios acta rule is an admission made by a conspirator under Sec. 30, Rule 130. This provision states that the act or declaration of a conspirator relating to the conspiracy, and during its existence, may be given in evidence against the coconspirator after the conspiracy is shown by evidence other than such act or declaration [People v. Cachuela, G.R. No. 191752 (2013)] Existence of the conspiracy may be inferred from acts of the accused [People v. Belen, G.R. No. L-13895 (1963)).

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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 crossexamine [People v. Palijon, G.R. No. 123545 (2000] 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)] 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 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]

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It denotes the idea of succession, not only be 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. 31, Rule 130]

g. Admission by Silence 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; 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); Sec. 32, Rule 130] 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

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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 guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him [Sec. 33, 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. L18179 (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

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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 crossexamine him. A judicial confession is admissible against the declarant’s co-accused since the latter are afforded the opportunity to cross-examine 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 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 Party Confession Acknowledgment of A statement of fact [2 guilt or liability [2 Regalado 754, 2008 Ed.] Regalado 754, 2008 Ed.] Maybe express or tacit Must be express [2 [2 Regalado 754, 2008 Regalado 754, 2008 Ed.] Ed.] Can be made only by Maybe made by 3rd the party himself, and parties, and in certain admissible against his cases, admissible co-accused in some against a party [2 instances [2 Regalado Regalado 754, 2008 Ed.] 754, 2008 Ed.] Acts, declarations or Declarations [Sec. 33, omissions [Sec. 26, Rule 130] Rule 130] May be in any proceeding (Sec. 26, Rule 130 refers to a party without distinction as to nature of proceeding)

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i. Similar Acts as Evidence

12. Hearsay Rule

General rule: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time

a. Meaning of Hearsay

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. 34, Rule 130] 2nd Branch of res inter alios acta rule [2 Regalado 774, 2008 Ed.] Reason for General Rule The rule is founded upon reason, justice and judicial convenience. 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] Metrobank v. Custodio [G.R. No. 173780 (2011)]: Facts: Respondent was accused of being responsible for cash shortage in the bank’s Laoag branch. Metrobank argued that respondent Custodio’s prior involvement in a cash shortage in its Cubao branch is admissible as evidence to prove a scheme or habit on her part. Held: Respondent’s prior involvement in a cash shortage in the bank’s Cubao branch does not conclusively prove that she is responsible for the loss of PhP600,000 in the Laoag City branch, subject of the instant case. If the prior cash shortage in Cubao showed a reasonable intent or habit on her part, then there was no reason for Metrobank to continue to employ her, considering the degree of trust and confidence required of a bank teller. Nevertheless, Custodio continued to serve the bank even after the case in petitioner Metrobank’s Cubao branch.

It is an out-of-court statement which is offered by the witness in court to prove the truth of the matters asserted by the statement It is any evidence, whether oral or documentary, if its probative value is not based on personal knowledge of witness but on knowledge of some other person not on witness stand [2 Regalado 776, 2008 Ed.] Elements 1. Declarant is out of court 2. Out of court declaration is offered as proof of its contents 3. Absence of opportunity for cross-examination

General Rule on Hearsay A witness can testify only as to those facts which he knows of his personal knowledge, that is, which are derived from his own perception [Sec. 36, Rule 130] The hearsay rule is not limited to oral testimony or statements; it applies to written, as well as oral statements [Consunji v. C.A., G.R. No. 137873 (2001)] 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)]

b. Reason for Exclusion of Hearsay Evidence 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 out-of-court declarant or actor upon whose reliability on which the worth of the out-of-court testimony depends

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[Herrera]

that which is imposed by an oath administered by the court. [People v. Cerilla, G.R. No. 177147 (2007)]

Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to crossexamine 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. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

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Dying declaration Declaration against interest Act or declaration about pedigree Family reputation or tradition regarding pedigree Common reputation Part of the res gestae Entries in the course of business Entries in official records Commercial lists and the like Learned treaties Testimony or deposition at a former trial

The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was consciousness of impending death [People v. Latayada, G.R. No. 146865 (2004)] 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 believe himself in imminent danger of death at the time of such declaration [Herrera, citing People v. Ericta 77 SCRA 199]

People v. Quisayas [G.R. No. 198022 (2014)]: Facts: Victim Januario was stabbed by respondents

on his way home. Policemen patrolling the area saw Januario lying on the street. He was brought by the policemen to the hospital. While in the vehicle, the police asked him who hurt him. He answered that it was the respondents. He eventually died because of the stab wounds.

DYING DECLARATION

Issue: WON the testimony of the accused was a

Also known as “antemortem statement” or “statement in articulo mortis” [People v. Mendoza, G.R. No. 142654 (2001)]

Held: No. It does not appear that the declarant was

dying declaration.

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 death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death [Sec. 37, Rule 130] d. Declarant is 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)] 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

under the consciousness of his impending death when he made the statements. No questions relative to the second requisite was propounded to Januario. 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. Thus, the utterances made by Januario could not be considered as a dying declaration. However, the Court appreciated the testimony as part of res gestae. Conviction of accused was sustained. Objections to the dying declaration May be premised on any of the requisites for its admissibility embodied in Sec. 37, Rule 130. Counsel who wants a dying declaration excluded must have to deal with the primary question of whether or not the evidentiary foundations for the introduction where met [Riano 302, 2016 Ed.]

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Dying declarations are admissible in favor of the defendant as well as against him [US v. Antipolo, 37 Phil. 726 (1918)] 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 his interest; and d. Declarant had no motive to falsify and believed such declaration to be true [Sec. 38, 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)] 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. 38, 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] Admissible against third persons If all the requisites for admission of a declaration against interest are present, the admission is admissible not only against the declarant but against third persons [Herrera, citing Viacrusis v. C.A., 44 SCRA 176] As Distinguished from Admissions Declaration against Admission by a party Interest [Sec. 38, [Sec. 26, Rule 130] Rule 130] Admitter is a party Declarant is neither a himself, or in privity party nor in privity with with such party a party Admissible whether or Admissible only when not admitter is available declarant is unavailable as a witness as a witness

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Can be made any time, even during trial Admissible only against the admitter Admissible not as an exception to any rule

Must have been made ante litem motam Admissible even against 3rd persons Admissible as an exception to the hearsay rule

Made against one’s Made against one’s claim or defense, pecuniary or moral although not moral or interest pecuniary interest Primary evidence Secondary evidence [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)] ACT OR PEDIGREE

DECLARATION

ABOUT

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 by birth or marriage 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 [Sec. 39, 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. 39, Rule 130] “Proof other than declaration” General rule: Proof of relationship must be shown in evidence other than the declaration. Exception: The general rule does not apply where the claim is sought to reach the estate of the declarant himself, and not merely to establish a right through his declarations to the property of some other member of the family [Tison v. C.A., G.R. No. 121027 (1997)]

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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] Not applicable to adoption The rule allowing proof of pedigree is not applicable to adoption. The absence of proof of an order of adoption by the court, as provided by statute, cannot be substituted by parol evidence that the child has lived with a person, not his parent, and was treated as child during the latter’s lifetime [Herrera, citing Lazatin v. Campos, G.R. No. L-43955-56 (1979)] FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE Requisites for Admissibility a. Witness must be a member, by consanguinity or affinity, of the same family as the subject; and b. Such reputation or tradition must have existed in that family ante litem motam [Sec. 40, Rule 130] 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. 40, 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 Declaration about Pedigree Sec. 40 – Family Sec. 39 – Declaration Reputation or about Pedigree Tradition There must be a The witness testifying declarant and a witness to the family reputation and tradition must be a The witness need not member of the family be a relative of the person whose pedigree member of the person whose pedigree is in is in question, it must controversy. be the declarant.

Independent evidence is needed to establish relationship between declarant and person whose pedigree is in issue

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The witness may testify on the relationship between such relationship himself. The author of the reputation need not be established by independent evidence.

[Herrera] 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. facts of public or general interest more than 30 years old, 2. marriage, or 3. moral character [Sec. 41, Rule 130] Other Admissible Evidence a. Monuments b. Inscriptions in public places [Sec. 41, Rule 130] Pedigree may be established by reputation in the family, but not in the community [Secs. 40-41, Rule 130] 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] The character of a place as an opium joint may be proved by its common reputation in the community [U.S. v. Choa Chiok, G.R. No. 12423, (1917)] 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

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members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations [In re: Florencio Mallare, AM No. 533 (1974)]

question and its attending circumstances [Talidano v. Falcon Maritime, G.R. No. 172031 (2008)]]

PART OF THE RES GESTAE

Res gestae

This expression signifies merely “transactions” or “things done” and is used in common law as meaning the circumstances which are automatic and undersigned incidents of the particular act in issue, and which are admissible in evidence when illustrative and explanatory of the act [Herrera] 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)] Requisites for res gestae Spontaneous Statements a. The principal act, the res gestae, be a startling occurrence b. The statements were made before the declarant had the opportunity to contrive c. The statements must refer to the occurrence in

Verbal Acts a.

The res gestae or principal act or to be characterized must be equivocal; b. Such act must be material to the issue c. The statements must accompany the equivocal act. d. The statements give a legal

[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.] Sec. 42. Res gestae Statement may be made by the killer himself after or during the killing [People v. Reyes, G.R. Nos. L-1846–48 (1949)] OR that of a 3rd person. May precede, accompany or be made after the homicidal attack was committed

significance to the equivocal act [Talidano v. Falcon Maritime, G.R. No. 172031 (2008)] [2 Regalado 790, 2008 Ed.]

Verbal act must have been made at the time, and not after, the equivocal act was being performed equivocal act [2 Regalado 790, 2008 Ed.] Sec. 37. 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.] Justification in the spontaneity of the statement.

ENTRIES IN THE COURSE OF BUSINESS Requisites for Admissibility a. Entries were made at, or near the time of the transactions referred to; b. Such entries were made in the ordinary or regular course of business or duty; c. Entrant was in a position to know the facts stated in the entries;

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d. Entrant did so in his professional capacity, or in the performance of duty and in the regular course of business; and e. Entrant is now dead or unable to testify. [Northwest Airlines v. Chiong, G.R. No. 155550 (2008); Sec. 43, Rule 130] 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)] Business records as exception to the hearsay rule under the Rules on Electronic Evidence a. A memorandum, report, record or data compilation b. Of acts, events, conditions, opinions, or diagnoses, c. Made by electronic, optical or other similar means d. At or near the time of or from transmission or supply of information by a person with knowledge thereof, and e. Kept in the regular course or conduct of a business activity, and f. Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, g. All of the preceding items are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence [Sec. 1, Rule 8, Rules on Electronic Evidence] This presumption (more accurately, exception), however, 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, Rules on Electronic Evidence] 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

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discipline record keepers in the habit of precision [LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971 (2010)] ENTRIES IN OFFICIAL RECORDS Requisites for Admissibility a. Entries in official records were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law [Sec. 44, 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, just like entries in the course of business, are merely prima facie evidence of the facts therein stated [Secs. 43-44, Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries [People v. C.A.buang, G.R. No. 103292 (1993)] Baptismal certificates or parochial records of baptism are not official records [Fortus v. Novero, G.R. No. L22378 (1968)]

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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 d. It is generally used and relied upon by them [Sec. 45, Rule 130] Need of preliminary proof of trustworthiness There should be requirements of preliminary proof of trustworthiness before such lists are rendered admissible. Some proof must be shown how or in what manner it was made up, where the information it contained was obtained, or whether the quotation of prices made were derived from actual sales or otherwise [Herrera] LEARNED TREATISES 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 profession or calling as expert in the subject [Sec. 46, 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)] TESTIMONY OR FORMER TRIAL

DEPOSITION

AT

A

Requisites for Admissibility a. Witness is dead or unable to testify; b. His 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;

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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. 47, Rule 130; Manliclic v. Calaunan, G.R. No. 150157 (2007)] 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)] 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] Doctrine Of Independently Relevant Statements 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 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,

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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)]

13. Opinion Rule Opinion Opinion is an inference or conclusion drawn from facts observed [Black’s Law Dictionary] General rule: The opinion of witness is not admissible [Sec. 48, Rule 130] Exceptions: a. Expert witness [Sec. 49, Rule 130] b. Ordinary witness [Sec. 50, Rule 130]

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It must be shown that the witness is really an expert; determination of competency is a preliminary question [Herrera] HYPOTHETICAL QUESTIONS Test Fairness is the ultimate test of hypothetical questions. The Court shall reject a question which unfairly selects parts of the facts proved or omits material facts. If it omits facts, it may be opposed on the ground that it is misleading [Herrera] Admissibility of hypothetical question Admissibility of hypothetical questions depends on whether it furnishes the tribunal with the means of knowing upon what premises of fact the conclusion is based [Herrera, citing Magiore v. Sheed (195 A. 392, 173 Md 33)] EXAMINING AN EXPERT WITNESS

a. Opinion of Expert Witness The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess, may be received in evidence [Sec. 49, 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 jury or 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

Mode of examination of expert witness He may base his opinion either on a first-hand knowledge of the facts or 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. A person afflicted with a personality disorder will not necessarily have personal knowledge thereof [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;

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After he has stated his opinion, ask him to give his reasons.

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MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTLY ACQUAINTED

Despite the fact that petitioner is a physician and even assuming that she is an expert in neurology, she was not presented as an expert witness. As an ordinary witness, she was not competent to testify on the nature, and the cause and effects of whiplash injury [Dela Llana v. Biong, G.R. No. 182356 (2013)]

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]

b. Opinion of Ordinary Witness

IMPRESSIONS OF THE EMOTION, BEHAVIOR, CONDITION OR APPEARANCE OF A PERSON

The opinion of an ordinary witness is admissible when: 1. If proper basis is given, and 2. Regarding: a. Identity of a person about whom he has adequate knowledge; b. Handwriting with which he has sufficient familiarity; c. Mental sanity of a person with whom he is sufficiently acquainted; and d. Impressions of the i. emotion, ii. behavior, iii. condition, or iv. appearance of a person [Sec. 50, 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]

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]

14. Character Evidence 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: [Sec. 51, Rule 130] Character evidence is not admissible. Exceptions: a. Criminal cases [Sec. 51(a), Rule 130] b. Civil case [Sec. 51(b), Rule 130] c. In the case provided for in Sec. 14, Rule 132 (Evidence of good character of witness is not admissible until such character has been impeached).

a. Criminal Cases 1.

Accused – May prove his good moral character, which is pertinent to the moral trait involved in the offense charged.

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2.

Prosecution – May not prove the bad moral character of the accused, except in rebuttal. 3. Offended Party – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. [Sec. 51, 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)] Good or bad moral character of offended party This is usually offered in rape cases and where the accused invokes the defense of self-defense. In rape cases, the character of a woman may be relevant and admissible on the question of the presence or absence of her consent. While in homicide and assault cases, it may be used as evidence of the victim’s character for turbulence and violence warranting the response of the accused [Herrera]

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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 Moral character is admissible only when pertinent to the issue of character involved in the case [Sec. 51(b), Rule 130] Evidence of the witness’ good character is not admissible until such character has been impeached [Sec. 14, Rule 130]

Note: Rape is no longer a crime against chastity (R.A. 8353). 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)]

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K. Offer and Objection

pleadings or documents not offered at the hearing of the case [Candido v. C.A., G.R. No. 107493 (1996)]

1. Offer of Evidence

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 quasijudicial 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)]

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: 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)] As Distinguished from Identification of Documentary Evidence Identification of Formal Offer of Documentary Evidence Evidence Done in the course of the trial and Done only when the accompanied by the party rests his/her case marking of the evidence [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)] 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. Without a formal offer of evidence, courts are constrained to take no notice of the evidence even if it has been marked and identified [Star Two v. Ko, G.R. No. 185454 (2011)] No evidentiary value can be given to pieces of evidence not formally offered [Dizon v. CTA, G.R. No. 140944 (2008)] However, where the absence of an offer of a 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. The provisions of the ROC on the inclusion on appeal of documentary evidence or exhibits in the records, cannot be stretched as to include such

The Republic offered the negotiated contracts solely to prove that the Bakunawas had been incorporators or owners, or had held key positions in the corporations that entered into the contracts. The Sandiganbayan correctly ruled, therefore, that the contracts could be considered and appreciated only for those stated purposes, not for the purpose of proving the irregularity of the contracts. Evidence can be considered only for the purposes it was specifically offered [Republic v Reyes-Bakunawa, G.R. No. 180418 (2013)] 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)] In this case, the court did not allow the petitioners to present their formal offer 10 years after resting its case. In an earlier case of Constantino v. C.A. [G.R. No. 116018 (1996)], the Court did not allow a formal offer even only after three months because such would, “condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice.” A party is not deemed to have waived objection to admissibility of documents by his failure to object to

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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)]

a. When to Make an Offer Kind of evidence Testimonial Documentary and Object [Sec. 35, Rule 132]

When to offer At the time the witness is called to testify After the presentation of a party’s testimonial evidence

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 General rule: Offer shall be done orally Exception: Allowed by the court in writing [Sec. 35, Rule 132] While the trial court may allow the offer to be done in writing, this can only be tolerated in extreme cases where the object evidence or documents are large in number––say from 100 and above, and only where there is unusual difficulty in preparing the offer [Heirs of Pasag v. Sps. Parocha, G.R. No. 155483 (2007)] Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer [Catuira v. C.A., G.R. No. 105813 (1994)]

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purpose [Spouses Ragudo v Fabella Estate Tenants Association, Inc., G.R. No. 146823, (2005)].

b. Objection Concept A party (e.g. the defendant) has a right to object to evidence which he considered not admissible under the complaint, even if the questions were asked by the judge and it was his duty to do so [Loper v. Standard Oil Company, G.R. No. 2345 (1906)] 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)] MANNER Excluding inadmissible evidence 1. One has to object to inadmissible evidence; 2. The objection must be timely made; and 3. The grounds for the objection must be specified [Herrera] 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; 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]

The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case [People v. Mate, G.R. No. L-34754 (1981)]

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]

The defendant cannot offer his evidence before the plaintiff has rested [Herrera, citing Engersail v. Malabon Sugar Co., 53 Phil. 7450]

General Objections Do not clearly indicate to the judge the ground upon which the objections are predicated [Riano 348, 2016 Ed.]

CLASSIFICATION OF OBJECTIONS

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In cases where the incompetency of the evidence is so palpable that a mere general objection is deemed sufficient and where the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed [Riano 349, 2016 Ed., citing 75 Am Jur 257 citing Scott v. Times-Mirro Co., 181 Cal 345, 184 P 672, 12 ALR 1007; Sparf v. United States, 156 US 51, 39 L Ed 343, 15 S. Ct. 273] Specific Objection States why or how the evidence is irrelevant or incompetent. Formal Objection Directed against the alleged defect in the formulation of the question Substantive Made and directed against the very nature of the evidence When to Object What to object to

Evidence offered orally (testimonial evidence) A question propounded in the course of oral examination

When to object Immediately after offer is made As soon as the grounds become reasonably apparent

Within 3 days after notice of the offer, Offer of evidence unless a different done in writing period is allowed by the court The grounds for objection must be specified in any case. [Sec. 37, Rule 132] The issue of the admissibility of documentary evidence arises only upon formal offer thereof. This is why objection to the documentary evidence must be made at the time it is formally offered, and not earlier [Republic v. Sandiganbayan, G.R. No. 188881 (2014)] Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the ground therefor becomes reasonably apparent [Bayani v. People, G.R. No. 155619 (2007)]

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Without such objection, he cannot raise the question for the first time on appeal [People v. Hernandez, G.R. No. 184804, 2009] 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)]

c. Repetition of an Objection When it becomes reasonably apparent in the course of examination of a witness that the 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 continuing objection to such class of questions [Sec. 37, Rule 132] A court may, motu proprio, treat the objection as a continuing one [Keller v. Ellerman & Bucknall Steamship, G.R. No. L-12308 (1918)] An objection must be seasonably made at the time it is formally offered. 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. L-16741 (1962)] A Comment/Opposition to a formal offer of evidence, when objected to as being "immaterial, irrelevant and impertinent," is an admission of the authenticity of the entries in the passport [Dycoco v. Orina, G.R. No. 184843 (2010)]

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d. 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] In that event it is perfectly proper for the court to take a reasonable time to study the question presented by the objection; but a ruling should always be made during the trial [Lopez v. Valdez, G.R. No. L-9113 (1915)] 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. RTJ-03-1747 (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] 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)]

Por Lo Que Puedo Valer Principle

The Supreme Court encourages the admission or borderline evidence for whatever it is worth or por lo que puedo valer [Prats & Co. v. Phoenix Insurance, 52 Phil. 807 (1930)] 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] The ruling on an objection must be given immediately after an objection is made. However, objections based

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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 [Cruz-Arevalo v. Querubin-Layosa, AM No. RTJ-06-2005 (2006)]

e. 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 given to be stricken off the record if: a. witness answers the question before the adverse party had the opportunity to object, and b. 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] Other cases when motion to strike is proper 1. When the answer is premature 2. When the answer of the witness is unresponsive; 3. When the witness becomes unavailable for crossexamination through no fault of the crossexamining party; 4. When the testimony is allowed conditionally and the condition for its admissibility was not fulfilled; [Riano] 5. Where evidence has been properly received, and its effect has been destroyed by other evidence, or its admissibility has afterward become apparent; [Herrera] 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]

f. Tender of Excluded Evidence The procedure in Section 40 is known as 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

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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 [CruzArevalo v. Querubin-Layosa, AM No. RTJ-06-2005 (2006)] 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)] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value [Vda. De Flores v. Workmen’s Compensation Commission, G.R. No. L-43316 (1977)] 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 Testimonial circumstances of the witness and the substance of the proposed testimony [Sec. 40, Rule 132]

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[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)] 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)] 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 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 Page 464 of 481

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IX. Revised Rules on Summary Procedure

B. Prohibited Pleadings and Motions

A. Cases Covered by the Rule

Prohibited Pleadings 1. Complaint 2. Compulsory counterclaim, pleaded in the answer 3. Cross-claim, pleaded in the answer 4. Answer to these pleadings [Sec. 3]

Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction: [Sec. 1] 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 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]

Prohibited motions 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 the preceding section (Referral to Lupon for conciliation) 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 12. Interventions [Sec. 19] 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)]. Outright dismissal 1. 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. 2. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply [Sec. 4]

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Answer 1. Within 10 days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. 2. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. 3. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. 4. The answer to counterclaims or cross-claims shall be filed and served within 10 days from service of the answer in which they are pleaded [Sec. 5]

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C. Effect of failure to answer 1.

2.

Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein: Provided, however, that the court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of now-Sec. 3(c), Rule 9 of ROC, if there are two or more defendants. [Sec. 6]

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D. Preliminary Conference and Appearances of Parties 1.

Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. 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]

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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]. 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. 83982 (1990)]

Subsequent proceedings 1. The court shall issue an order stating the matters taken up therein, not limited to the matters stated in Sec. 8, within 5 days after the termination of the preliminary conference [Sec. 8] 2. Within 10 days from the receipt of the order mentioned in (1), the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them [Sec. 9] Affidavits 1. 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. 2. Violation of this rule may subject party or counsel who submitted the defective affidavit is subject to disciplinary action. [Sec. 20] Rendition of judgment Within thirty 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]

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X. Rules of Procedure For Small Claims Cases

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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. 2. 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] a.

[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. 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]

A. Scope and Applicability of the Rule Scope This Rule shall govern the procedure in actions before the MeTC, MTC in Cities, MTC and MCTC for payment of money where the value of the claim does not exceed PHP 400,000 exclusive of interest and costs [Sec. 2]

Note: In ordinary civil actions, docket fees need not be paid for the imposition of docket fees on compulsory counterclaims has been suspended in OCA Circular 96-2009. [Villanueva-Ong v. Senator Enrile, G.R. No. 212904 (2017)]

Applicability 1. 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 2. These claims or demands may be a. For money owned 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 1. If at the time the action is commenced, the defendant possesses a claim against the plaintiff that Page 469 of 481

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B. Commencement of Small Claims Action; Response How commenced By filing with the court an accomplished and verified STATEMENT OF CLAIM in duplicate [Sec. 6] Note: The plaintiff must state in the Statement of Claim if he/she/it is engaged in the business of lending, banking and similar activities, and the number of small claims cases filed within the calendar year regardless of judicial station [Sec. 6] Plaintiffs engaged in the aforementioned businesses who have a branch within the municipality/city where the defendant resides must file the Statement of Claim/s in such municipality/city. Other plaintiffs are subject to the regular rules on venue. [Sec. 7] If a plaintiff who is engaged in the aforementioned businesses but misrepresents that he/she/it is not engaged in them, then the Statement of Claim/s shall be dismissed with prejudice; the plaintiff shall be meted the appropriate sanctions, such as direct contempt [Sec. 11] 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 3. Affidavits of witnesses and other evidence to support the claim [Sec. 6] 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] No formal pleading, other than the Statement of Claim, is necessary to initiate a small claims action [Sec. 6] Payment of filing fees 1. The plaintiff shall pay the docket and other legal fees prescribed under Rule 141, unless allowed to litigate as an indigent. 2. Exemption from the payment of filing fees shall be granted only by the SC. 3. However, 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

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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. 4. If the plaintiff is engaged in the business of banking, lending and similar activities, the amount of filing and other legal fees shall be the same as those applicable to cases filed under the regular rules. 5. A claim filed with a motion to sue as indigent shall be referred to the Executive Judge for immediate action in case of multi-sala courts. a. 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. b. 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. 6. 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] Dismissal 1. After the court determines that the case falls under these Rules, it may, from an examination of the allegations of the Statement of Claim/s and such evidence attached thereto, by itself, dismiss the case outright on any of the grounds for the dismissal of the case. The order of dismissal shall state if it is with or without prejudice. 2. If, during the hearing, the court is able to determine that there exists a ground for dismissal of the Statement of Claim/s, the court may, by itself, dismiss the case even if such ground is not pleaded in the defendant’s Response. 3. If plaintiff misrepresents that he/she/ it is not engaged in the business of banking, lending or similar activities when in fact he/she/it is so engaged, the Statement of Claim/s shall be dismissed with prejudice and plaintiff shall be meted the appropriate sanctions, such as direct contempt. 4. However, if the case does not fall under this Rule, but falls under summary or regular procedure, the case shall not be dismissed. Instead, the case shall be re-docketed under the appropriate procedure, and returned to the court where it was assigned, subject to payment of any deficiency in the applicable regular rate of filing fees. 5. If a case is filed under the regular or summary procedure, but actually falls under this Rule, the

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case shall be referred to the Executive Judge for appropriate assignment. [Sec. 11]

C. Prohibited Pleadings and Motions

Even if not included in the grounds in the Rules of Court, the court may dismiss the complaint for lack of cause action if the plaintiff failed to preponderantly establish its claim against the defendant by clear and convincing evidence. [Lourdes Suites v. Binarao, G.R. No. 204729 (2014)]

1.

Response If no ground for dismissal is found, the court shall issue Summons directing defendant to submit a verified response [Sec. 12] 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] Attachments (to Response): 1. Certified photocopies of documents 2. Affidavits of witnesses 3. Evidence in support [Sec. 13]

Motion to dismiss the compliant 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]

General rule: No evidence shall be allowed during hearing which was not attached or submitted together with the Response. Exception: Unless good cause is shown for the admission of additional evidence [Sec. 13] Should the defendant fail to file his response within the required period, and likewise fail 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 [Sec. 14] Should the defendant fail to file his response within the required period, but 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] Note: The following is not expressly provided in the section: “The court may, in its discretion, reduce the amount of damages for being excessive or unconscionable.”

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D. Appearances The parties shall personally appear on the designated date of hearing. 2. Appearance through a representative must be for a valid cause. 3. The representative of an individual-party must not be a lawyer, and must be related to or nextof-kin of the individual-party. 4. Juridical entities shall not be represented by a lawyer in any capacity. 5. The representative must be authorized under a Special Power of Attorney to enter into an amicable settlement of the dispute and to enter into stipulations or admissions of facts and of documentary exhibits. [Sec. 18] 1.

Attorneys not allowed 1. No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant 2. If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent. [Sec. 19] Failure to appear 1. If plaintiff fails to appear – it shall be a cause for dismissal without prejudice. 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]

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E. Hearing; Duty of the Judge 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] At the hearing, the judge shall first exert efforts to bring the parties to an amicable settlement of their dispute [Sec. 23] If the attempt at an amicable settlement fails, the hearing shall so proceed in an 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]

F. Finality of Judgment 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] An original special civil for certiorari is the proper remedy to assail the propriety of the MTCC Decision in the subject small claims case. 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)]

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XI. Rules of Procedure For Environmental Cases [A.M. No. 09-6-8-SC]

A. 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 such as but not limited to the following: 1. Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; 2. P.D. No. 705, Revised Forestry Code; 3. P.D. No. 856, Sanitation Code; 4. P.D. No. 979, Marine Pollution Decree; 5. P.D. No. 1067, Water Code; 6. P.D. No. 1151, Philippine Environmental Policy of 1977; 7. P.D. No. 1433, Plant Quarantine Law of 1978; 8. P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; 9. R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; 10. R.A. No. 4850, Laguna Lake Development Authority Act; 11. R.A. No. 6969, Toxic Substances and Hazardous Waste Act; 12. R.A. No. 7076, People’s Small-Scale Mining Act; 13. R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas;

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14. R.A. No. 7611, Strategic Environmental Plan for Palawan Act; 15. R.A. No. 7942, Philippine Mining Act; 16. R.A. No. 8371, Indigenous Peoples Rights Act; 17. R.A. No. 8550, Philippine Fisheries Code; 18. R.A. No. 8749, Clean Air Act; 19. R.A. No. 9003, Ecological Solid Waste Management Act; 20. R.A. No. 9072, National Caves and Cave Resource Management Act; 21. R.A. No. 9147, Wildlife Conservation and Protection Act; 22. R.A. No. 9175, Chainsaw Act; 23. R.A. No. 9275, Clean Water Act; 24. R.A. No. 9483, Oil Spill Compensation Act of 2007; and 25. Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws [Amending the NIRC]; R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, HighValue Crops Development 26. Rules of Procedure for Environmental Cases Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources [Sec. 3, Rule 1]

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B. Civil Procedure 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]. 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. 4. 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] 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] 

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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 pretrial [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]

1. Prohibition against

Temporary Restraining Order and Preliminary Injunction

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]. Where the issuance of a TEPO is premised on the violation of an environmental law or a threatened damage or injury to the environment by any person, even the government and its agencies, the prohibition against the issuance of a TRO or preliminary injunction is premised on the presumption of regularity on the government and its agencies in enforcing environmental laws and protecting the environment [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee].

2. Pre-Trial Conference;

Consent Decree

a.

The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. b. 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

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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. c. Evidence not presented during the pre-trial, except newly-discovered evidence, shall be deemed waived. [Sec. 5, Rule 3] Consent decree refers to 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].

3. Prohibited Pleadings and

Motions

The following pleadings or motions shall not be allowed: a. Motion to dismiss the complaint; b. Motion for a bill of particulars; c. Motion for extension of time to file pleadings, except to file answer, the extension not to exceed 15 days; d. Motion to declare the defendant in default; e. Reply and rejoinder; and f. Third party complaint [Sec. 2, Rule 2]

4. Temporary Environmental

Protection Order (TEPO)

Ground for Issuance If it appears from the 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] Period of Effectivity Seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined [Sec. 8, Rule 2]. Duty of Court 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]. The judge shall report any action taken on a TEPO, EPO, TRO or a preliminary injunction, including its modification and dissolution, to the Supreme Court,

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through the Office of the Court Administrator, within 10 days from the action taken [Sec. 11, Rule 2]. Ground to Dissolve TEPO The TEPO may be dissolved if it appears after hearing that its issuance or continuance would 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 [Sec. 9, Rule 2]. Period to Try and Decide a. The court shall have a period of 1 year from the filing of the complaint to try and decide the case. b. Before the expiration of the 1-year period, the court may petition the SC for the extension of the period for justifiable cause. c. The court shall prioritize the adjudication of environmental cases. [Sec. 5, Rule 4]

5. Judgment and Execution;

Reliefs in a Citizen 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].

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6. Permanent Environmental

Protection Order; Writ of Continuing Mandamus

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] 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. 4(c), Rule 1] The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment [Sec.3, Rule 5]

7. Strategic Lawsuit Against

Public Participation (SLAPP)

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].

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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 If the suit is a SLAPP, such may be raised as an affirmative defense in the Answer along with other defenses. If SLAPP is interposed as a defense, it is mandatory for adverse party to file an Opposition [Sec. 2, Rule 6]. The hearing on the defense of a SLAPP shall be summary in nature [Secs. 3, Rule 6]. The affirmative defense of a SLAPP shall be resolved within 30 days after the summary hearing [Secs. 4, 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 [Secs. 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]

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 Sub-Committee]. 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;

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C. Special Civil Actions 1. Writ of Kalikasan Who May File a. natural or juridical person, b. entity authorized by law, c. people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces [Sec. 1, Rule 7] Acts Covered By the Writ Unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces [Sec. 1, Rule 7] Where to File The petition shall be filed with the SC or with any of the stations of the CA [Sec. 3, 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 non-extendible 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]

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The following pleadings and motions are prohibited: a. Motion to dismiss; b. Motion for extension of time to file return; c. Motion for postponement; d. Motion for a bill of particulars; e. Counterclaim or cross-claim; f. Third-party complaint; g. Reply; and h. Motion to declare respondent in default [Sec. 9, Rule 7]

3. 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] 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] APPEAL Within 15 days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact [Sec. 16, Rule 7]

2. Prohibited Pleadings and

Motions

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Kalikasan

4. Writ of Continuing

Mandamus

When Available a. Any agency or instrumentality of the government or officer thereof: 1. 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 2. unlawfully excludes another from the use or enjoyment of such right; AND b. there is no other plain, speedy and adequate remedy in the ordinary course of law [Sec. 1, Rule 8] Where to File a. RTC exercising jurisdiction over the territory where the actionable neglect or omission occurred b. CA; or c. SC [Sec. 2, Rule 8] Procedure File a verified Petition with prayer that respondent be ordered to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner + Certification Against Forum Shopping [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] Distinctions Between Writ of Kalikasan and Writ of Continuing Mandamus Kalikasan Continuing Mandamus

Subject Matter

Available against an unlawful act or omission of a public official or

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Directed against [a] the unlawful neglect in the performance of an

Continuing Mandamus

Subject Matter

employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces [Sec. 1, Rule 7[

act specifically enjoined by law in connection with the enforcement/ violation of an environmental rule or [b] the unlawfully exclusion of another from the use or enjoyment of such right and in both instances, there is no other plain, speedy and adequate remedy in the ordinary course of law [Sec. 1, Rule 8]

Who May File a.

natural and juridical persons b. entities authorized by law c. POs, NGOs, PIG, on behalf of persons whose right to a balanced and healthful ecology is violated or threatened to be violated [Sec. 1, Rule 7]

Person personally aggrieved by the unlawful act or omission [Sec. 1, Rule 8]

May be public or private individual or entity [Sec. 1, Rule 7]

Government or its officers[Sec. 1, Rule 8]

Exempted [Sec. 4, Rule 7]

Exempted [Sec. 3, Rule 8]

Respondent

Docket Fees Venue a.

SC or CA [Sec. 2, Rule 7]

RTC exercising territorial jurisdiction, b. CA, c. SC [Sec. 3, Rule 8]

Discovery Measures Ocular Inspection and Production or Inspection Order [Sec. 12, Rule 7]

None

Damages None [Sec. 17, Rule 7]

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[Sec. 1, Rule 11]

D. Criminal Procedure

4. Strategic Lawsuit Against

1. Who May File a. Offended party; b. Peace officer; c. Public officer charged with the enforcement of an environmental law [Sec. 1, Rule 9]

2. Institution of Criminal and

Civil Action

a.

When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged, shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. b. Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment. c. In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. 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]

3. Arrest Without Warrant,

When Valid

a.

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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 or circumstances that the person to be arrested has committed it. Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws

Public Participation [SLAPP]

The manner by which to allege that a criminal action is a SLAPP is through a motion to dismiss [Sec. 1, Rule 19] rather than a motion to quash. A motion to dismiss allows the action to be challenged as a SLAPP, while a motion to quash is directed at the Information. Moreover, granting a motion to dismiss bars the refiling of a SLAPP in accordance with the law of the case. In contrast, the grant of a motion to quash does not bar the filing of a subsequent Information [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]

5. Procedure in the Custody

and Disposition of Seized Items

The applicable rules and regulations of the concerned government agency shall be followed [Sec. 1, Rule 12]. In the absence of such rules and regulations, the following procedure shall be observed: a. Inventory. 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. b. Return. The apprehending officer shall submit to the issuing court the return of the search warrant within 5 days from date of seizure or in case of warrantless arrest, submit within 5 days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. c. Sale Upon Motion. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. 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. The notice of auction shall

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be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. d. Disposition of Proceeds. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment [Sec. 2, Rule 12]

6. Bail Written Undertaking by Accused a. 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; b. To appear whenever required by the court where the case is pending; and c. To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia [Sec. 2, Rule 14]

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3.

Render and promulgate judgment of conviction, including the civil liability for damages [Sec. 2, Rule 15]

8. Pre-trial After the arraignment, the court shall set the pre-trial conference within 30 days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial [Sec. 2, Rule 15] Parties are required to be under oath in pre-trial in order to obviate the use of false or misleading statements at this stage [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court SubCommittee]

9. Subsidiary Liabilities In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiary liable under Article 102 and Article 103 of the Revised Penal Code [Sec. 1, Rule 18]

If the court grants bail, the court may issue a holddeparture order in appropriate cases [Sec. 1, Rule 14] [Rule 13, Sec.1]

7. Arraignment and Plea When The court shall set the arraignment of the accused within 15 days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment [Sec. 1, Rule 15] Plea-Bargaining a. On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. b. Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall: 1. Issue an order which contains the pleabargaining arrived at; 2. Proceed to receive evidence on the civil aspect of the case, if any; and

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E. Evidence 1. Precautionary Principle When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. [Sec. 1, Rule 20] For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When these features — uncertainty, the possibility of irreversible harm, and the possibility of serious harm — coincide, the case for the precautionary principle is strongest [ISAAA v. Greenpeace, G.R. No. 209271 (2015)] Standards for application In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected [Sec. 2, Rule 20]

2. Documentary Evidence a.

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 the person who took the same, by some other person present when said evidence was taken, or by any other person competent to testify on the accuracy thereof [Sec. 1, Rule 21] b. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated [Sec. 2, Rule 21]

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