Green Notes Remedial Law_2019.pdf

DE LA SALLE UNIVERSITY COLLEGE OF LAW Lasallian Commission on Bar Operations

REMEDIAL LAW Green Notes 2019

Green Notes 2019

Table of Contents

TABLE OF CONTENTS

GENERAL PRINCIPLES .................................................................................................................................................................................................... 4 A.

SUBSTANTIVE LAW VS. REMEDIAL LAW ............................................................................................................................................... 4

B.

RULE-MAKING POWER OF THE SUPREME COURT ........................................................................................................................... 4

C.

PRINCIPLE OF JUDICIAL HIERARCHY ..................................................................................................................................................... 4

D.

DOCTRINE OF NON-INTERFERENCE/JUDICIAL STABILITY .......................................................................................................... 4

JURISDICTION ................................................................................................................................................................................................................... 6 A.

CLASSIFICATION OF JURISDICTION ....................................................................................................................................................... 6

B.

DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION .................................................................. 6

C.

Jurisdiction of various Philippine Courts ................................................................................................................................................ 7

D.

ASPECTS OF JURISDICTION..................................................................................................................................................................... 10

E.

JURISDICTION VS. EXERCISE OF JURISDICTION............................................................................................................................... 11

F.

JURISDICTION VS. VENUE ......................................................................................................................................................................... 11

G. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL CLAIMS CASES AND CASES COVERED BY SUMMARY PROCEDURE ............................................................................................................................................................... 11 CIVIL PROCEDURE ..........................................................................................................................................................................................................14 A.

General provisions (Rule 1) .........................................................................................................................................................................14

B.

Cause of action (Rule 2) ...............................................................................................................................................................................15

C.

Parties to Civil Actions (Rule 3) .................................................................................................................................................................16

D.

Venue (Rule 4).................................................................................................................................................................................................18

E.

Pleadings ..........................................................................................................................................................................................................18

F.

Filing and Service of Pleadings, Judgments, Final Orders, and Resolutions ............................................................................... 25

G.

Summons ........................................................................................................................................................................................................ 28

H.

Motions ........................................................................................................................................................................................................... 32

I.

Dismissal ......................................................................................................................................................................................................... 37

J.

Pre-trial (Rule 18) ..........................................................................................................................................................................................39

K.

Intervention (Rule 19) ..................................................................................................................................................................................40

L.

Subpoena (Rule 21) ........................................................................................................................................................................................41

M.

Computation of Time (Rule 22) .................................................................................................................................................................41

N.

Modes of discovery ...................................................................................................................................................................................... 42

O.

Trial (Rule 30) ................................................................................................................................................................................................ 45

P.

Consolidation or Severance (Rule 31) ..................................................................................................................................................... 46

Q.

Demurrer to Evidence (Rule 33) .............................................................................................................................................................. 48

R.

Judgments and Final Orders ..................................................................................................................................................................... 49

S.

Post-Judgment Remedies ...........................................................................................................................................................................51

T.

Execution, Satisfaction, and Effect of Judgments (Rule 39) ............................................................................................................ 57

PROVISIONAL REMEDIES ............................................................................................................................................................................................ 62 A.

Nature, Purpose and Jurisdiction over Provisional Remedies ........................................................................................................ 62

B.

Preliminary Attachment (Rule 57)............................................................................................................................................................ 62

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Table of Contents

Preliminary Injunction ................................................................................................................................................................................ 65

Exceptions.......................................................................................................................................................................................................................... 67 D.

Receivership (Rule 59) ................................................................................................................................................................................. 67

E.

Replevin (Rule 60) .........................................................................................................................................................................................68

SPECIAL CIVIL ACTIONS .............................................................................................................................................................................................. 70 A.

JURISDICTION AND VENUE ..................................................................................................................................................................... 70

B.

Interpleader (Rule 62) ................................................................................................................................................................................. 72

C.

Declaratory Relief and Similar Remedies (Rule 63) ............................................................................................................................ 72

D.

Review of Judgments and Final Orders or Resolutions of the COMELEC and COA (Rule 64 in relation to Rule 65) ..... 74

E.

Certiorari, Prohibition and Mandamus .................................................................................................................................................. 75

F.

Quo Warranto (Rule 66) ..............................................................................................................................................................................77

G.

Expropriation................................................................................................................................................................................................. 79

H.

Foreclosure of Real Estate Mortgage ..................................................................................................................................................... 83

I.

Partition (Rule 69) ........................................................................................................................................................................................86

J.

Forcible Entry and Unlawful Detainer ................................................................................................................................................... 88

K.

Contempt (Rule 71) ....................................................................................................................................................................................... 94

PENALTIES .................................................................................................................................................................................................................. 95 SPECIAL PROCEEDINGS...............................................................................................................................................................................................98 A.

SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE, AND PROCESS ........................................................................99

B.

ESCHEAT (RULE 91) .................................................................................................................................................................................... 114

C.

GUARDIANSHIP ........................................................................................................................................................................................... 115

D.

WRIT OF HABEAS CORPUS ...................................................................................................................................................................... 117

E.

CHANGE OF NAME (RULE 103) ............................................................................................................................................................... 121

F.

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (Rule 108) ......................................................... 121

G.

CLERICAL ERROR LAW ( R.A. NO. 9048) ............................................................................................................................................. 122

CRIMINAL PROCEDURE ............................................................................................................................................................................................. 123 A.

GENERAL MATTERS .................................................................................................................................................................................. 123

B.

PROSECUTION OF OFFENSES (RULE 110)........................................................................................................................................... 127

C.

PROSECUTION OF CIVIL ACTION (RULE 111) .................................................................................................................................... 132

D.

PRELIMINARY INVESTIGATION ............................................................................................................................................................ 134

E.

ARREST (RULE 113) ..................................................................................................................................................................................... 138

F.

BAIL (RULE 114)............................................................................................................................................................................................ 142

G.

ARRAIGNMENT AND PLEA (RULE 116) ................................................................................................................................................. 150

H.

MOTION TO QUASH (RULE 117) ............................................................................................................................................................ 153

I.

PRE-TRIAL (RULE 119) ................................................................................................................................................................................157

J.

TRIAL (RULE 119) ......................................................................................................................................................................................... 158

K.

JUDGMENT (RULE 120) ............................................................................................................................................................................ 162

L.

NEW TRIAL OR RECONSIDERATION (RULE 121) .............................................................................................................................. 164

M.

APPEAL (RULES 122, 123, 124, AND 125) ................................................................................................................................................ 165

N.

SEARCH AND SEIZURE (RULE 126) ....................................................................................................................................................... 168

O.

PROVISIONAL REMEDIES IN CRIMINAL CASES (RULE 127) .......................................................................................................... 172

P.

REVISED GUIDELINES ON CONTINUOUS TRIAL (A.M. NO. 15-06-10-SC)...............................................................................173

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Q.

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THE RULE ON CYBERCRIME WARRANTS (A.M. NO. 17-11-03-SC) ..............................................................................................174

EVIDENCE ........................................................................................................................................................................................................................176 A.

GENERAL CONCEPTS ................................................................................................................................................................................176

B.

ADMISSIBILITY ............................................................................................................................................................................................ 177

C.

OBJECT (REAL) EVIDENCE ...................................................................................................................................................................... 180

D.

DOCUMENTARY EVIDENCE .................................................................................................................................................................... 181

(RULE 130, B) .............................................................................................................................................................................................................. 181 E.

TESTIMONIAL EVIDENCE ....................................................................................................................................................................... 184

(RULE 130, C)............................................................................................................................................................................................................. 184 F.

BURDEN OF PROOF AND PRESUMPTIONS (RULE 131) .................................................................................................................. 199

G.

PRESENTATION OF EVIDENCE ............................................................................................................................................................ 202

H.

JUDICIAL AFFIDAVIT RULE ..................................................................................................................................................................... 210

I.

WEIGHT AND SUFFICIENCY OF EVIDENCE ...................................................................................................................................... 211

J.

RULES ON ELECTRONIC EVIDENCE ................................................................................................................................................... 212

WRIT OF AMPARO ........................................................................................................................................................................................................ 213 WRIT OF HABEAS DATA ............................................................................................................................................................................................. 215 RULES FOR PROCEDURE ON ENVIRONMENTAL CASES ................................................................................................................................. 217 TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) .............................................................................................................. 217 WRIT OF CONTINUING MANDAMUS................................................................................................................................................................ 217 WRIT OF KALIKASAN ............................................................................................................................................................................................. 218

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General Principles

A. SUBSTANTIVE LAW VS. REMEDIAL LAW SUBSTANTIVE LAW Creates vested rights (Prospective in application); cannot be waived Cannot be enacted by the SC

GENERAL PRINCIPLES

It creates, defines and regulates rights and duties concerning life, liberty or property which when violated gives rise to a cause of action.

Enacted by the Congress

REMEDIAL LAW No vested rights; can be waived SC is empowered to promulgate rules under its rule-making power provided in the Constitution It prescribes the methods of enforcing those rights and obligations created by substantive law. It provides for a procedural system for obtaining redress for the invasion of rights and violations of duties and prescribe rules as to how suits are filed, tried and decided by the courts. Rules promulgated by the SC

B. RULE-MAKING POWER OF THE SUPREME COURT Rule-making power, defined: The Supreme Court has the constitutional power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and the legal assistance to the underprivileged

C. PRINCIPLE OF JUDICIAL HIERARCHY The policy means that a higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate lower courts. Exception: The Doctrine of Hierarchy of Courts may be disregarded if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations. Hence, under the doctrine of liberal construction, the SC may suspend its own rules (e.g. cases of national interest and of serious implications) Quesada v. Dept. of Justice: The SC is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter. It cannot be burdened with the task of dealing with causes in the first instance. Its original jurisdiction should be exercised only where absolutely necessary or where serious important reason exist.

D. DOCTRINE OF NONINTERFERENCE/JUDICIAL STABILITY

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General Principles

General Rule: No Court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court of equal jurisdiction. (Industrial Enterprise v. CA, 1990) The doctrine of non-interference is also applicable to administrative bodies. (Philippine Sinter Corporation v. Cagayan Electric Power and Light Co., Inc., 381 SCRA 582) Exception: Such doctrine does not apply where a thirdparty claimant is involved (Santos v. Bayhon, July 1991)

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Jurisdiction

A. CLASSIFICATION OF JURISDICTION 1.

ORIGINAL VS. APPELLATE

ORIGINAL Those courts which, under the law, actions or proceedings may originally be commenced

APPELLATE Courts which have the power to review on appeal the decisions or orders of a lower court

2. GENERAL VS. SPECIAL GENERAL Those competent to decide on their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or rules. Example: Regional Trial Court

SPECIAL Those which have no power to decide on their own jurisdiction and only try cases permitted by statute. Municipal Trial Courts

3. EXCLUSIVE VS. CONCURRENT EXCLUSIVE Power to adjudicate a case of proceeding to the exclusion of all other courts at that stage

JURISDICTION

CONCURRENT Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different territories.

B. DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION DOCTRINE OF HIERARCHY OF COURTS An established policy that parties must observe the hierarchy of courts before they can seek relief directly from the Supreme Court. The rationale for this rule is twofold: a. It would be an imposition upon the limited time of the Supreme Court; and b. It would inevitably result in a delay, intended or otherwise, in the adjudication of cases, which in some instances, had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because the Supreme Court is not a trier of facts. DOCTRINE OF ADHERENCE OF JURISDICTION/ DOCTRINE OF CONTINUITY OF JURISDICTION • The principle that once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. • The doctrine holding that even the finality of the judgment does not totally deprive the court of jurisdiction over the case. What the court loses is the power to amend, modify or alter the

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Jurisdiction

judgment. Even after the judgment has become final, the court retains jurisdiction to enforce and execute it.

C. JURISDICTION OF VARIOUS PHILIPPINE COURTS SUPREME COURT a.

EXCLUSIVE ORIGINAL JURISDICTION IN THE PETITIONS FOR CERTIORARI, PROHIBITION, AND MANDAMUS AGAINST THE: 1) Court of Appeals 2) COMELEC 3) Commission on Audit 4) Sandiganbayan 5) Court on Tax Appeals (R.A. No. 9282)

b.

CONCURRENT ORIGINAL JURISDICTION WITH THE COURT OF APPEALS FOR CERTIORARI, PROHIBITION, AND MANDAMUS AGAINST THE: 1) RTC 2) Sandiganbayan 3) Shari’ah District Court 4) NLRC 5) Quasi-judicial agencies Note: Subject to the doctrine of hierarchy of Courts c.

CONCURRENT ORIGINAL JURISDICTION WITH THE CA AND RTC IN PETITIONS FOR CERTIORARI, PROHIBITION AND MANDAMUS AGAINST:

Lower courts and bodies and in petitions for quo warranto, and writs of habeas corpus, all subject to the doctrine of hierarchy of courts. d.

CONCURRENT ORIGINAL JURISDICTION WITH THE RTC IN CASES AFFECTING AMBASSADORS, PUBLIC MINISTERS AND CONSULS.

e.

APPELLATE JURISDICTION BY WAY OF PETITION FOR REVIEW ON CERTIORARI (APPEAL BY CERTIORARI UNDER RULE 45) AGAINST CA, SANDIGANBAYAN, RTC ON: 1) 2)

Pure questions of law; Cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court; and CTA in its decisions rendered en banc.

The SC is not a trier of facts which means that passing upon factual issues is not within the province of the Supreme Court. The findings of facts of the CA are not generally reviewable by the SC .

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EXCEPTIONS IN WHICH FACTUAL ISSUES MAY BE RESOLVED BY SC: 1. When the findings are grounded entirely on speculation, surmises or conjectures; 2. When the inference made is manifestly mistaken, absurd or impossible; 3. When there is grave abuse of discretion; 4. When the judgment is based on misapprehension of facts; 5. When the findings of facts are conflicting; 6. When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; 7. When the findings are contrary to the trial court; 8. When the findings are conclusions without citation of a specific evidence on which they are based; 9. When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent; 10. When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and 11. When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion. CASES WHICH MUST BE HEARD EN BANC: 1. All cases involving the constitutionality of a treaty, international or executive agreement, or law; 2. All cases which under the ROC are required to be heard en banc; 3. All cases involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations; 4. Cases heard by a division when the required majority in the division is not obtained; 5. Cases involving the modification or reversal of a doctrine or principle of law laid down previously by the SC in a decision rendered en banc or by a division; 6. Cases involving the discipline of judges of lower courts 7. Contests relating to the election, returns, and qualifications of the President or Vice President ANCILLARY JURISDICTION (a) Writ of injunction (b) Attachment (c) Receivership (d) Replevin (except Support Pendente Lite) COURT OF APPEALS a. b.

EXCLUSIVE ORIGINAL JURISDICTION IN ACTIONS FOR THE ANNULMENT OF THE JUDGMENTS OF THE RTC. CONCURRENT ORIGINAL JURISDICTION with: 1. With SC to issue writs of certiorari, prohibition and mandamus against the RTC, CSC, other quasi-judicial agencies

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c.

Jurisdiction

mentioned in Rule 43, and the NLRC, and writ of kalikasan; 2. With the SC and RTC to issue writs of certiorari, prohibition and mandamus against lower courts and bodies and writs of quo warranto, habeas corpus, whether or not in aid of its appellate jurisdiction, and writ of continuing mandamus on environmental cases; 3. With SC, RTC and Sandiganbayan for petitions for writs of amparo and habeas data EXCLUSIVE APPELLATE JURISDICTION 1. By way of ordinary appeal from the RTC and the Family Courts; 2. By way of petition for review from the RTC rendered by the RTC in the exercise of its appellate jurisdiction; 3. By way of petition for review from the decisions, resolutions, orders or awards of the CSC and other bodies mentioned in Rule 43 and of the Office of the Ombudsman in administrative disciplinary cases; 4. Over decisions of MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction; this is because decisions of MTCs in these cases are appealable in the same manner as decisions of RTCs. SANDIGANBAYAN

TWO KINDS OF JURISDICTION (1) Civil jurisdiction (2) Criminal jurisdiction a.

ORIGINAL JURISDICTION IN ALL CASES INVOLVING: 1. Violations of RA 3019 (Anti-Graft and Corrupt Practices Act); 2. Violations of RA 1379 (Anti-Ill-Gotten Wealth Act); 3. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity at the time of the commission of the offense: 4. 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); 5. Members of Congress and officials thereof classified as G-27 and up under RA 6758; 6. Members of the Judiciary without prejudice to the provisions of the Constitution; 7. Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution; 8. All other national and local officials classified as Grade 27 and higher under RA 6758.

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b. c.

Other offenses or felonies committed by the public officials and employees mentioned in Sec. 4(a) of RA 7975 as amended by RA 8249 in relation to their office; Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249)

CONCURRENT ORIGINAL JURISDICTION WITH SC, CA AND RTC FOR PETITIONS FOR WRITS OF HABEAS DATA AND AMPARO APPELATE JURISDICTION OVER FINAL JUDGMENT, RESOLUTIONS OR ORDERS OF RTC, WHETHER OWN ORIGINAL OR THEIR APPELATE JURISDICTION REGIONAL TRIAL COURTS

a.

EXCLUSIVE ORIGINAL JURISDICTION: 1. Matters incapable of pecuniary estimation; Examples of actions incapable of pecuniary estimation are: • complaint for expropriation • action seeking to annul resolution of a GOCC • action to annul deed of declaration of heirs • Title to, possession of, or interest in, real property with assessed value exceeding P20,000 (outside Metro Manila), or exceeds P50,000 in Metro Manila; • Probate proceedings where the gross value of the estate exceeds P300,000 outside MM or exceeds P400,000 in MM; • Admiralty and maritime jurisdiction where the demand or claim exceeds P300,000 (outside MM) or where such demand or claim which exceeds P400,000 in MM; • Other actions involving property valued at more than P300,000 outside MM or more than P400,000 in MM • In all other cases in which the demand, exclusive of interest, damages and costs of suit and attorneys fees. b.

ORIGINAL EXCLUSIVE JURISDICTION OVER CASES NOT FALLING WITHIN THE JURISDICTION OF ANY COURT, TRIBUNAL, PERSON OR BODY EXERCISING JUDICIAL OR QUASI-JUDICIAL FUNCTIONS

c.

CONCURRENT AND ORIGINAL JURISDICTION: 1. With the Supreme Court in actions affecting ambassadors, other public ministers and consuls; 2. With the SC and CA in petitions for certiorari, prohibition and mandamus against lower courts and bodies in petitions for quo warranto, habeas corpus, and writ of continuing mandamus on environmental cases; 3. With the SC, CA and Sandigabayan in petitions for writs of habeas data and amparo

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d.

Jurisdiction

APPELLATE JURISDICTION OVER CASES DECIDED BY LOWER COURTS IN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS 1. General jurisdiction over cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court 2. RTC acting as special commercial court in cases involving intra-corporate controversies under the securities and regulations code a. Devices or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholder, partners, members of associations or organizations registered with the Commission; b. Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members, or associates; between any or all of them and the 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; c. Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations. d. Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee created pursuant to this Decree. FAMILY COURTS

1.

Petitions for guardianship, custody of children and habeas corpus involving children

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2. 3.

4. 5.

6. 7. 8.

Petitions for adoption of children and the revocation thereof 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 Petitions for support and/or acknowledgment Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under PD 603, EO 56 (1986) and other related laws Petition for constitution of Family Home (RA 8369) Petition for declaration of status of children as abandoned, dependent or neglected children; Petition for involuntary commitment of a child, or removal of custody against child placement or child caring agency or individual; or commitment of disabled child. (AM no. 05-1104)

METROPOLITAN TRIAL COURTS, MUNICIPALTRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS a.

EXCLUSIVE ORIGINAL JURISDICTION 1. Civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount the demand does not exceed P200,000 outside MM or does not exceed P400,000 in MM, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs; 2. Summary proceedings of forcible entry and unlawful detainer, violation of rental law;

FORCIBLE ENTRY The possession of the defendant is unlawful from the beginning; issue is which party has prior de facto possession; The law does not require previous demand for the defendant to vacate; The plaintiff must prove that he was in prior physical possession of the premises until he was deprived by the defendant; and The one year period is generally counted from the date of actual entry on the property.

UNLAWFUL DETAINER The possession of the defendant is lawful from the beginning becomes illegal by reason of the expiration or termination of his right to the possession of the property; Plaintiff must first make such demand which is jurisdictional in nature; The plaintiff need not have been in prior physical possession;

The one-year period is counted from the date of last demand.

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3.

4.

5. 6.

Jurisdiction

Title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed P20,000 outside MM or does not exceed P50,000 in MM Delegated jurisdiction to hear and decide cadastral and land registration cases where there is no controversy provided the value of the lad to be ascertained by the claimant does not exceed P100,000 All cases of inclusion and exclusion of voters in their respective cities or municipalities According to Sec 1 of BP 22, violation of BP 22 “shall be punished by imprisonment of not less than thirty days but not more than one (1) year..” SHARIAH COURTS

a.

b.

c.

EXCLUSIVE ORIGINAL JURISDICTION 1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; 2. All cases involving disposition, distribution and settlement of the estate of the deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property; 3. Petitions for the declaration of absence and death and for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of this Code; 4. All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and 5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. CONCURRENT JURISDICTION 1. Petitions by Muslims for the constitution of a family home, change of name and commitment of an insane person to an asylum; 2. All other personal and real actions not mentioned in paragraph (4) of the immediately preceding topic, wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Court; and 3. All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. APPELLATE JURISDICTION

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2.

Shari'a District Courts shall have appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. The Shari'a District Court shall decide every case appealed to it on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit.

D. ASPECTS OF JURISDICTION 1. JURISDICTION OVER THE PARTIES The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant. The mode of acquisition of jurisdiction over the plaintiff and the defendant applies to both ordinary and special civil actions like mandamus or unlawful detainer cases. HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED: Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court. This presupposes payment of the docket fees. Payment of docket fees vests a trial court with jurisdiction over the subject matter or nature of the action HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED: • Acquired either by his Voluntary appearance in court and his submission to its authority; or • By service of summons Note: Jurisdiction over the person of the defendant is required only in an action in personam; it is not a prerequisite in an action in rem and quasi in rem. In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided the latter has jurisdiction over the res. VOLUNTARY APPEARANCE General Rule: The defendant‘s voluntary appearance shall be equivalent to service of summons.(Sec 20, Rule 14, ROC) Exception: When the appearance is precisely to object to the jurisdiction of the court over his person, it is not considered as an appearance in court and should not be construed as a submission by the defendant of his person to the jurisdiction of the court—this so called the concept of SPECIAL APPEARANCE 2. JURISDICTION OVER THE SUBJECT MATTER It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. It is the power or authority to

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hear and determine cases to which the proceeding is question belongs. When a complaint is filed in court, the basic questions that ipso facto are to be immediately resolved by the court on its own: • What is the subject matter of their complaint filed before the court? • Does the court have jurisdiction over the said subject matter of the complaint before it? Answering these questions inevitably requires looking into the applicable laws conferring jurisdiction. 3. JURISDICTION OVER THE ISSUES It is the power of the court to try and decide issues raised in the pleadings of the parties. 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. Where there is no disputed point, there is no issue. Generally, jurisdiction over the issues is conferred and determined by the pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or law. Jurisdiction over the issues may also be determined and conferred by stipulation of the parties as when in the pre-trial, the parties enter into stipulations of facts and documents or enter into agreement simplifying the issues of the case. It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent issues not raised by the pleadings. The issues tried shall be treated in all respects as if they had been raised in the pleadings. (Riano) Issues which are not raised in the pleading and tried with the express or implied consent of the parties, amendment is allowed. (Sec 5, Rule 10) 4.

JURISDICTION OVER THE RES OR THE PROPERTY IN LITIGATION Jurisdiction over the res refers to the court‘s jurisdiction over the thing or the property which is the subject of the action. Jurisdiction over the res may be acquired by the court by placing the property of thing under its custody (custodia legis). Example: attachment or garnishment of property It may also be acquired by the court through statutory authority conferring upon it the power to deal with the property or thing within the court‘s territorial jurisdiction. Example: suits involving the status of the parties or suits involving the property in the Philippines of non-resident defendants. Jurisdiction over the res is acquired by the seizure of the thing under legal process whereby it is brought into actual custody of law, or it may result from the institution of a legal proceeding wherein the power of the court over

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the thing is recognized and made effective (Banco Español Filipino vs. Palanca, 37 Phil. 291).

E. JURISDICTION VS. EXERCISE OF JURISDICTION Jurisdiction is the power or authority of the court, while the exercise of this power is called the exercise of jurisdiction. 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

F. JURISDICTION VS. VENUE JURISDICTION Authority to hear and determine a case Matter of substantive law Establishes a relation between the court and the subject matter Fixed by law and cannot be conferred by the parties

VENUE Place where the case is to be heard or tried Matter or procedural law Relation between plaintiff and defendant, or petitioner and respondent May be conferred by the act or agreement of the parties

G. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL CLAIMS CASES AND CASES COVERED BY SUMMARY PROCEDURE JURISDICTION OVER SMALL CLAIMS (A.M. NO. 08-9-7SC) WHEN APPLICABLE: Actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed Two Hundred Thousand Pesos (P200,000.00), exclusive of interest and costs. CASES COVERED: • 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 civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in

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court (pursuant to Rule 111 of the Revised Rules of Criminal Procedure) CLAIMS OR DEMANDS COVERED: The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by the Rule. For money owed under any of the following: 1. Contract of Lease; 2. Contract of Loan; 3. Contract of Services; 4. Contract of Sale; or 5. Contract of Mortgage; For damages arising from any of the following: 1. Fault or negligence; 2. Quasi contract; or 3. Contract; JURISDICTION OVER CASES COVERED BY THE REVISED RULES ON SUMMARY PROCEDURE Actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts falling under: CIVIL CASES CRIMINAL CASES All cases of forcible Violation of Bouncing entry and unlawful Checks Law (BP 22) detainer, irrespective Violations of Municipal or of the amount of City Ordinances damages or unpaid Violations of Rental Law rentals sought to be All other criminal cases recovered. Where where the penalty attorney‘s fees are prescribed is imprisonment awarded, the same not exceeding 6 months, or shall not exceed fine not exceeding P1,000, P20,000; or both, irrespective of other imposable penalties, All other cases where accessory or otherwise, or the total amount of the of the civil liability arising plaintiff‘s claim does therefrom, provided, that in not exceed P100,000 offenses involving damage (outside MM) or to property through P200,000 (in MM), criminal negligence, rule exclusive of interest shall govern where the and costs. (except imposable fine does not probate proceedings) exceed P10k. DETERMINATION OF APPLICABILITY The court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination of the Rule of Summary Procedure is a ground for disciplinary action. PROHIBITED PLEADINGS UNDER THE RULES OF SUMMARY PROCEDURE: 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 barangay 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;

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Jurisdiction

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. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION General Rule: ALL disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law and prior recourse thereto is a precondition before filing a complaint in court or any government offices Exceptions: 1. Where one party is the government, or any subdivision or instrumentality thereof; 2. Where one party is a public Officer or employee and the dispute relates to the performance of his official functions; 3. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; 4. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules] 5. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; 6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one [1] year or a fine of over P5,000.00; 7. Offenses where there is no private offended party; 8. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: a. Criminal cases where accused is under police custody or detention [Sec. 412 (b) (1), Revised Katarungang Pambarangay Law]; b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf; c. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; d. Actions which may be barred by the Statute of Limitations. 9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;

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Jurisdiction

10.

Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657); 11. Labor disputes or controversies arising from employer-employee relations (Montoya vs. Escayo,et al., 171 SCRA 442) 12. Actions to annul judgment upon a compromise which may be filed directly in court. (Sanchez vs. Tupaz, 158 SCRA 459) Remedies of a party if the compromise or agreement in the Lupong Tagapamayapa is not followed: a. Under Section 417 of the Local Government Code, such amicable settlement or arbitration award may be enforced by execution by the Barangay Lupon within six (6) months from the date of settlement; b. By filing an action to enforce such settlement in the appropriate city or municipal court, if beyond the six-month period; or c. To consider it rescinded and insist upon his original demand under Art. 2041 of the Civil Code. (Miguel vs Montanez, 2012)

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Civil Procedure

A. General provisions (Rule 1)

CIVIL PROCEDURE

ACTION • Action is the 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 filling with a court of justice. • An ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong. • Action and suit are synonymous. MEANING OF ORDINARY CIVIL ACTIONS •

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. (Sec. 3(a) Rule 1, ROC)

MEANING OF SPECIAL CIVIL ACTIONS • A special civil action is generally brought or filed for the same purpose as that of an ordinary civil action but subject to different rules. MEANING OF CRIMINAL ACITONS • A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (Sec. 3(b), Rule 1, ROC) CIVIL ACTION The purpose of an action is either to protect a right or prevent or redress a wrong.

SPECIAL PROCEEDINGS The purpose of a special proceeding is to establish a status, a right or a particular fact (Sec. 3, Rule 1, ROC)

REAL ACTIONS An action is real when it affects title to or possession or real property, or an interest therein. (Sec. 1, Rule 4, ROC) Example: an action to recover possession of real property plus damages.

PERSONAL ACTIONS All other actions are personal actions (Sec 2, Rule 4, ROC) Example: an action for a declaration of nullity of marriage.

The distinction between a real and personal action is important for the purposes of determining the venue of the action. ACTION IN REM, IN PERSONAM, AND QUASI IN REM ACTION IN REM • A proceeding brought to determine the status of a particular thing itself and which is confined to the subject-matter in specie, is in rem, the judgment being intended to determine the state or condition, and, pro facto, to render the thing what the judgment declares it to be. Process

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Civil Procedure

may be served on the thing itself and by such service and making proclamation, the court is authorized to decide upon it without notice to persons, all the world being parties. ACTION IN PERSONAM • A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction or 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 to the mandate of the court. • The purpose of this proceeding is to impose through the judgment of a court, some responsibility or liability directly upon the person of the defendant • In an action in personam, no other than the defendant is sought to be held liable, not the whole world. Rules of Court shall not apply in the following cases: 1. Election cases 2. Land Registration Cases 3. Cadastral 4. Naturalization 5. Insolvency proceedings

B. Cause of Action (Rule 2) It is the reason why the litigation has come about, it is the act or omission of the defendant resulting in the violation of someone’s rights. Elements of cause of action: (a) A right in favour or 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; (c) Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. RIGHT OF ACTION It is the right to commence and prosecute an action and to obtain relief sought. Elements of right of action (a) Existence of a cause of action; (b) Performance of all conditions precedent to the bringing of the action; and (c) The action must be instituted by the proper party. RIGHT OF ACTION Remedial right belonging to some person.

CAUSE OF ACTION Formal statement of the operative facts that give rise to such remedial right

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FAILURE TO STATE A CAUSE OF ACTION (a) The mere existence of a cause of action is not sufficient for a complaint to prosper. (b) The cause of action must unmistakably be stated or alleged in the complaint or that all the elements of the cause of action required by substantive law must clearly appear from the mere reading of the complaint. (c) Where there is defect or an insufficiency in the statement of the cause of action, a complaint may be dismissed not because of absence or lack of a cause of action but because the complaint “states no cause of action”. FAILURE TO STATE A CAUSE OF ACTION

LACK OF CAUSE OF ACTION

The failure to state a cause of action does not mean that there is no cause of action. It only means that the allegations of the plaintiff are insufficient for the court to know that the rights of the plaintiff were violated by the defendant.

Failure to establish cause of action refers to failure to prove by evidence one’s stated cause of action.

TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION • The test of sufficiency of a cause of action is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint. • In determining the sufficiency of the cause of action, the truth or the falsity of the allegations in the complaint are beside the point because the allegations in the complaint are hypothetically admitted. • 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. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS • Splitting a single cause of action is the act of instituting two or more suits for the same cause of action. (Sec. 4, Rule 2, ROC) The pleader divides a single cause of action, claim or demand into two or more parts, brings a suit for one of such parts with the intent to reserve the rest for another separate action. • Splitting a cause of action is not allowed by the ROC. • This is discouraged because it breeds multiplicity of suits and clogs the dockets of the court. This rule applies not only to complaints but also to counterclaims and cross-claims. (Riano) • A single act may sometimes violate several rights of a person. Nevertheless, the plaintiff has only one cause of action regardless of the number of rights violated. Three tests to ascertain whether two suits relate to single or common cause of action:

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(a) (b) (c)

Whether the same evidence would support and sustain both the first and second causes action; Whether the defenses in one case may be used to substantiate the complaint in the other; Whether the cause of action in the second case existed at the time of the filing of the first complaint? (Umale v. Canoga Park Dev’t. Coproration 654 SCRA 155, 162).

EFFECT OF SPLITTING A SINGLE CAUSE OF ACTION • If two or more suits are instituted for a single cause of action, the filing of one or judgment on the merits in one is available as a ground for dismissal of the others. • The remedy of the defendant is to file a motion to dismiss.

JOINDER OF CAUSES OF ACTION Joinder of causes of action is the assertion of as many causes of action as party may have against another in one pleading alone. It is the process of uniting two or more demands or rights of action in one action. When there are two or more defendants, or two or more plaintiffs, the causes of action against the defendants can only be joined if there is compliance with the rules on joinder of parties. Sec. 6 Rule 3 requires that before there can be a proper joinder of parties, the right to relief should arise out of the same transaction or series of transactions and there exist a common question of law or fact. This requirement does not apply when there is only one plaintiff and defendant because in such case there are no parties to be joined. MISJOINDER OF CAUSES OF ACTION When there is a misjoinder of causes of action, the erroneously joined cause of action can be severed and proceeded separately upon motion by a party or upon the court’s own initiative. Misjoinder of causes of action is not a ground for the dismissal of the action (Sec. 6, Rule 2)

C. Parties to Civil Actions (Rule 3) There are two main categories of parties to a civil action namely, the plaintiff and the defendant (Sec.1, Rule 3) KINDS OF PARTIES: REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVE AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS REAL PARTIES IN INTEREST (1) 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). (2) He must present substantial interest in the suit.

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(3)

(4)

The determination of who the real party in interest is requires going back to the elements of the cause of action. Every action must be prosecuted and defended in the name of the real party in interest (Sec.2, Rule 3).

INDESPENSABLE PARTIES (a) An indispensable party is a real-party-in-interest without whom no final determination can be had of an action(Sec.7, Rule 3) (b) Without the presence of this party the judgment of a court cannot attain real finality. (c) A party who has such interest in the controversy that a final adjudication cannot be made in his absence. REPRESENTATIVE AS PARTIES (a) Where the action is allowed to be prosecuted and defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real property in interest. (b) A representative may be a trustee of an expert trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. (c) An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal NECESSARY PARTIES (a) Not indispensable to the action. (b) A final determination of the case can be had among the parties already impleaded where a necessary party for some reason is not joined. (c) Ought to be joined as a party for a complete relief 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) INDIGENT PARTIES (1) A party may be authorized to litigate as an indigent if the court is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. (2) The application and the hearing to litigate as an indigent litigant may be made ex parte. (3) If one is authorized to litigate as indigent, such authority shall include an exemption from payment of docket and other lawful fees and transcripts of stenographic notes. (Sec. 21, Rule 3) ALTERNATIVE DEFENDANTS Where the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may join all of them as defendants in alternative. UNWILLING CO-PLAINTIFF (1) He is a party who is supposed to be a plaintiff but whose consent to be joined as a plaintiff cannot be obtained as when he refuses to be a party to the action. (2) He may be made a defendant and the reason therefor shall be stated in the complaint.

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(b) COMPULSORY JOINDER OF PARTIES A joinder is compulsory when the one involved is an indispensable party. There must be compulsory joinder of indispensable parties. PERMISSIVE JOINDER OF PARTIES For a permissive joinder of parties to be allowed, there must be: (a) right to relief arising out of the same transaction or series of transaction; and (b) a question of fact or law common to all plaintiffs or defendants. Transaction, defined Not only a stipulation or agreement but any event resulting in wrong, without regard to whether the wrong has been done by violence, neglect or breach of contract. Series of Transactions, defined Transactions connected with the same subject of the action. MISJOINDER OF PARTIES A party is misjoined when he is made a party to the action although he should not be impleaded. NON-JOINDER OF PARTIES There is non joinder of parties when he is supposed to be joined but is not impleaded in the action. DISTINCTION BETWEEN NON-JOINDER OF PARTIES AND MISJOINDER OF PARTIES NON JOINDER PARTIES

OF

A party was not impleaded in the action but should be made part of the action.

MISJOINDER OF PARTIES A party was pleaded in an action but was not supposed to be impleaded.

Effect of misjoinder or non-joinder of parties Misjoinder and non joinder of parties are not grounds to dismiss the action. However, the failure to obey the court order to drop or add a party is a ground for the dismissal of the complaint. (Sec.3, Rule 17) CLASS SUITS It is an action where one or more may sue for the benefit of all if the requisites for said action are complied with. Requisites (1) Subject matter of the controversy must be of common or general interest to many persons; (2) Persons are so numerous that is impracticable to join all as parties; (3) Parties actually before the court are found by the court to be sufficiently numerous and representative as to fully protect the interests of all concerned; and (4) Representatives sue or defend for the benefit of all. (Riano) Commonality of interest on the subject matter (a) A class suit does not require a commonality of interest in the questions involved in the suit. What is required is a common or general interest in the subject matter of the litigation.

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There is no class suit when the injuries allegedly suffered by the members of the class are separate and distinct from each other.

SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the name and addresses of the persons composing said entity must all be revealed EFFECT OF DEATH OF PARTY LITIGANT The death of the client extinguishes the attorney-client relationship and divests a counsel of his authority to represent the client. A dead client has no personality and can no longer be represented. Whenever a party to a pending action dies, it is the duty of the counsel of the deceased party to inform the court of such fact within 30 days after such death. This duty is mandatory and failure to comply is a ground for disciplinary action. (Sec.16, Rule 3) Purpose: the protection of the right to due process of every party to a litigation who may be affected by the intervening death—the deceased litigant is himself or herself protected, as he/she continues to be properly represented in the suit through his heirs or the duly appointed legal representative of his estate. Effect of death of a party litigant Upon the receipt of the notice of death, the court shall determine whether or not the claim is extinguished by such death. ü If the claim survives The court shall order the legal representative of the deceased to appear and be substituted for the deceased within 30 days from notice. ü If the claim does not survive The action is extinguished. When the opposing party may procure the appointment of an executor for the estate of the deceased: (a) When the counsel for the deceased does not name a legal representative, or (b) There is a representative named but he fails to appear within the specified period. When there is substitution: (1) Service of summons is not required to effect the substitution. (2) The purpose of substitution of parties is the protection of the right of every party to due process, to ensure that the deceased would be properly represented in the suit through the duly appointed legal representative.

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DISTINCTION BETWEEN REAL PARTY IN INTEREST AND LOCUS STANDI REAL PARTY IN LOCUS STANDI INTEREST In private suits, a litigant must be a real party in interest. It is one wne who stands to be benefited or injured by the judgment in the suit, or the party entitled to the acails of the suit. The interest must be real, which is a present substantial interest. (Riano)

In non-private suits, the Doctrine of Locus Standi requires that the one who sues, must show, that he has sustained injury or will sustain a direct injury as a result of a government action, or has material interest in the issue affected by the challenged official act.

the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. VENUE OF ACTIONS AGAINST NON-RESIDENTS Non-residents Personal action Real action in the where the where the Philippines plaintiff resides property is located Non-residents not found in the Philippines

The Doctrine of Locus Standi is significant in cases involving questions of constitutionality because it is one of the essential requisites before such questions may be judicially entertained (Riano)

D. Venue (Rule 4) VENUE - DEFINITION Place or geographical area where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. Place where the action must be instituted and tried. VENUE VERSUS JURISDICTION VENUE JURISDICTION Geographical area in which Power of the Court to a court may hear and hear and Decide a case on determine a case (place of the merits trial) Procedural Substantive In Civil cases, venue may be Granted by Law; hence, stipulated by the parties cannot be stipulated May be waived Cannot be waived, EXCEPT for jurisdiction over the person Establishes a relation Establishes a relation between the plaintiff and between the court and the the defendant parties and subject matter Deals with convenience Deals with substance Court may not motu propio Court may motu propio dismiss a case for improper dismiss a case for lack of venue, except in summary jurisdiction procedure. VENUE OF REAL ACTIONS Actions affecting title to or possession of real property, or interest therein shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. VENUE OF PERSONAL ACTIONS All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where

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If the case involves: (1) The personal status of the plaintiff - in such a case, the venue is where the plaintiff resides (2) When it involves a property of the defendant located in the Philippines - the venue will be where the plaintiff resides or the place where the property is located.

WHEN THE RULES ON VENUE DO NOT APPLY (1) In those cases where a specific rule or law provides otherwise. (2) Where prties have validly agreed in writing before the filing of the action on the exclusive venue thereof. EFFECTS OF STIPULATIONS ON VENUE The parties may agree on a specific venue which could be in a place where neither of them resides. Written stipulations are either mandatory or permissive. In interpreting stipulations as to venue, inquiry must be made as to whether or not the agreement is restrictive in the sense that the suit may be filed only in the place agreed upon or merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules.

E. Pleadings 1.

Kinds (Rule 6)

COMPLAINT A complaint is a pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. ANSWER An answer is a pleading in which a defending party sets forth his affirmative or negative defenses. NEGATIVE DEFENSES Specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

NEGATIVE PREGNANT

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A denial pregnant with the admission of substantial facts in the pleading responded to which are not squarely deied. It is in effect an admission of the averment it is directed to. It arises when: There is too literal denial of the allegations of the opponent’s pleadings, for in such case it is merely the form and not the substance that is denied Facts alleged with qualifying or modifying language, and the words of the allegation as so qualified or modified are literally denied. In such a case, the qualifying circumstances alone are denied while the fact itself is admitted. AFFIRMATIVE DEFENSES Affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by way of confession and avoidance. COUNTERCLAIMS A counterclaim is any claim which a defending party may have against an opposing party. How raised (a) By including it in the answer; [Rule 11, Sec 8] (b) By filing after the Answer; (1) A counterclaim may be set up, by leave of court, by amendment before judgment when: (1) It is not set up due to oversight, inadvertence or excusable neglect, or when justice requires it. [Rule 11, Sec 10] (2) A counterclaim, which either matured or was acquired by a party after serving his pleading, with permission of the court be set up in a supplemental pleading before judgment. [Rule 11 Sec 9] COMPULSORY COUNTERCLAIM One which is cognizable by the regular courts of justice, arises out of or is necessarily connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. A compulsory counterclaim is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom. A counterclaim presupposes the existence of a claim against the party filing the counterclaim. The filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. The ruling on filing fees does not apply to a compulsory counterclaim but only to permissive counterclaim because there is no need to pay docket fees for compulsory counterclaim. Faiilure to raise a cumpolsory counterclaim will deem it barred.

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Requisites (1) it arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim; (2) it does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and (3) the court has jurisdiction to entertain the claim both as to its amount and nature, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. Tests under the case of Namarco v. United Federation of Namarco (a) Are the issues of fact and law raised by the claim and counterclaim largely the same? (b) Would res judicata bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule? (c) Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counter-claim? (d) Is there any logical relation between the claim and the counter-claim? An affirmative answer to each of the foregoing questions suggests that the counterclaim is compulsory. 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. Failure to allege or raise a permissive counterclaim will not bar it. A proper remedy is file another action. COMPULSORY COUNTERCLAIM vs. PERMISSIVE COUNTERCLAIM Compulsory Counterclaim Permissive Counterclaim One which arise out of or is It does not arise out of necessarily connected with nor is it necessarily the transaction or connected with the occurrence that is the subject matter of the subject matter of opposing opposing party’s claim. party’s claim. (Sec. 7, Rule 6) There is an absence of a logical connection with the subject matter of the complaint. It does not require for its It may require for its adjudication the presence adjusdication the of third parties of whom presence of third parties the court cannot acquire over whom the court cannot acquire jurisdiction. (Sec. 4, Rule 6) jurisdiction. Not an initiatory pleading. Initiatory pleading. Need not be accompanied by a certification against forum shopping.

Must be accompanied by a certification against forum shopping.

EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DIMISSED If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff‘s

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motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint. The dismissal of the complaint, due to the fault of the plaintiff, is without prejudice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. The dismissal of the main action does not carry with it the dismissal of the counterclaim. CROSS-CLAIMS A cross claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. The purpose of a cross-claim is to settle in a single proceeding all the claims of the different parties in the case against each other in order to avoid multiplicity of suits. Limitations: (1) Must arise out of the subject matter of complainant. (2) Can be filed only against a co-party. (3) Is proper only where the cross claimant stands to be prejudiced by the filing of the action against him. THIRD (FOURT,ETC.) PARTY COMPLAINT Claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc)- party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim. Test of propriety: (1) It arises out of the same transaction on which plaintiff’s claim is based, or the third-party claim, although arising out of another or different contract or transaction, is connected with the plaintiff’s claim (2) The third party defendant would be liable to the plaintiff or to the defendant in whole or in part of plaintiff’s claim against the original defendant, although the third party’s liability arises out of another transaction; and (3) The third party defendant may assert defenses which the third party plaintiff may have against the plaintiff’s claim. COMPLAINT-IN-INTERVENTION Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a litigant therein to enable him, her or it to protect or preserve a right or interest which may be affected by such proceedings.

Civil Procedure

(3) (2)

Interestagainst both parties or when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof.

REPLY A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. PLEADINGS ALLOWED UNDER THE 2016 REVISED RULES OF PROCEDURE FOR SMALL CLAIMS CASES AND THE 1991 REVISED RULES ON SUMMARY PROCEDURE Pleadings are allowed in the following: UNDER SMALL CLAIMS UNDER RULES ON CASES SUMMARY PROCEDURE (1) Complaint, (1) Statement of claim
 (2) Compulsory (2) Response
 Counterclaim (3) Counterclaim in the (3) Cross-claim response pleaded in the (4) (A.M. No. 08-8-7-SC) answer (4) Answers thereto (5) (Sec. 3[A], II, Rules on Summary Procedure) Small Claim Cases, definition These are civil claims which are exclusively for the payment or reimbursement of a sum of money not exceeding P200,000. 2.

Parts of a pleading (Rule 7)

CAPTION Contains the ff: (1) Name the court (2) Title of the action, and (3) Docket number, if assigned. (Sec. 1, Rule 7) Note: The title of the action indicates the name of the parties. SIGNATURE AND ADDRESS 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) VERIFICATION AND FORUM-SHOPPIG

CERTIFICATION

AGAINST

Intervening in a case is not a matter of right but of sound discretion of the Court.

VERIFICATION A sworn attestation by the one filing the pleadings that he has caused the preparation of the pleadings, he has read the contents thereof, and that the same are true and correct based on his personal knowledge and authentic records. (Jacinto v. Gumaru, 2014)

Grounds: (1) Legal interest in any of the ff: (1) The matter in litigation (2) The success of any of the parties, or

Except as when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit (Sec. 4, Rule 7, Rules of Court).

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Green Notes 2019

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. (Jacinto v. Gumaru, 2014) Verification must be by a person having personal knowledge of facts alleged in the information. The verification by a lawyer is sufficient, it being presumed that facts by him alleged are true to his knowledge. CERTIFICATION AGAINST FORUM SHOPPING The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting claim for relief, or in sworn certification annexed thereto and simultaneously filed therewith: That he has not commenced any action or filed any claim involving the same issued in any court, tribunal or quasi judicial agency and to the best of his knowledge, no such other action or claim is pending therein; If there is such other pending action or complaint, a complete statement of the present status thereof; and If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his complaint or initiatory pleading has been filed. Failure to comply with the requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be a cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing (Sec. 5, Rule 7, Rules of Court). FORUM SHOPPING An act of malpractice committed by a party to the action by filing multiple suits either successively or simultaneously in dfferent courts involving the same parties, same causes of action and asking for the same relief for the purpose of securing a favorable judgment. Test to determine FORUM shopping (1) There is identity of parties (2) There is identity of Rights or causes of action and relief prayed for (3) Any judgment rendered would amount to res judicata Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other (Lim v. Vianzon, 2006). Elements OF Litis Pendentia: (1) Identity of parties or at least such as to represent the same interest in both actions; (2) Identity of rights asserted and relief prayed for, the relief founded on the same facts; and (3) Identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which the party is successful, amount to res judicata in the other .

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Certificate of non-forum shopping is mandatory but not jurisdictional. REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING A juridical entity, unlike a natural person, can only perform physical acts through properly delegated individuals. (Riano) It may be signed by a specifically authorized lawyer who has personal knowledge of the facts required to be disclosed in such document. The certificate of non-forum shopping must be accompanied by a board resolution or a secretary’s certificate authorizing the person signing the certification. EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. Unsigned pleading produces no legal effect. Note: Attorney may be subjected to disciplinary action 3.

Manner of making allegations (Rule 8)

MANNER OF MAKING ALLEGATIONS 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 relied for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. CONDITION PRECEDENT In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (Sec. 3, Rule 8) FRAUD, MISTAKE, CONDITION OF THE MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS In all averments of fraud or mistake the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally. (Sec. 5, Rule 8) Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (Sec. 7, Rule 8)

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Green Notes 2019

PLEADING AN ACTIONABLE DOCUMENT ACTIONABLE DOCUMENT the written instrument or upon which the action or defense is based. Requisites: (1) The substance of such instrument or document shall be set forth in the pleading; and (2) The original or copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading; or said copy may with like effect be set forth in the pleading The rule is not applicable if the document is not the basis of the complaint or defense How to deny the genuineness and due execution of actionable documents: To deny the genuineness and due execution of an instrument means that the defendant must declare under oath that he did not sign the document or that is otherwise false or fabricated. The denial must be specific. SPECIFIC DENIALS Defendant is required to make a specific denial to make him disclose the matters alleged in the complaint which he sincerely intends to disprove in the trial. EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS (a) The genuineness and due execution is deemed admitted. (b) The document need not be formally offered in evidence. WHEN A SPECIFIC DENIAL REQUIRES AN OATH (1) Denial of the genuineness and due execution of an actionable document; and (2) Denial of allegations of usury. WHEN AN OATH IS NOT REQUIRED: (1) When the adverse party does not appear to be a party to the instrument; or (2) When compliance with an order for an inspection of the original instrument is refused. (Sec. 8, Rule 8, ROC) Effect of making specific denial Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath (Sec. 11, Rule 8). 4.

Effect of failure to plead (Rule 9)

FAILURE TO PLEAD DEFENSES AND OBJECTIONS Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject

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matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by a statute of limitations, the court shall dismiss the claim (Sec. 1, Rule 9, ROC). This is not applicable in Summary Proceedings. General rule: Defenses and objections not pleaded either in motion to dismiss or in the answer are deemed waived. (OMNIBUS MOTION RULE) Exceptions ü The court has no jurisdiction over the subject matter; ü Another action is pending between the same parties for the same cause; or ü Action is barred by a prior judgment or by statute of limitations. FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND CROSS-CLAIM A compulsory counterclaim, or a cross-claim, not set up shall be barred. (Sec. 2, Rule 9). A compulsory counterclaim not set up shall be barred if not raised on time and the party in error is precluded from setting it up in a subsequent litigation on the ground of res judicata. The theory being that what are barred by prior judgments are not only the matters actually raised and litigated but also such matters as could have been raised but were not. A compulsory counterclaim cannot be made the subject of a separate action but should be asserted in the same suit involving the same transaction or occurrence giving rise to it. DEFAULT WHEN A DECLARATION OF DEFAULT IS PROPER Stages of Default (a) Declaration of Order of Default – when defendant fails to answer within the time specified in the rules, the court shall upon motion of the plaintiff and proof of such failure declare the defendant in default. (b) Rendition of Judgment by Default – on the basis of the allegation of the complaint, or after receiving plaintiff’s evidence, the court shall render judgment granting him such relief as the complaint and the facts proven may warrant. Elements of a valid declaration of default (1) The court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance. (2) Defendant failed to plead his answer within the time allowed therefor, (3) There must be a motion to declare the defendant in default filed by the claiming party with notice to the defending party.

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EFFECT OF AN ORDER OF DEFAULT A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Sec. 3 (a), Rule 9). Party in default should receive the following notices: (a) Motion to declare him in default; (b) Order declaring him in default; (c) Subsequent proceedings; (d) Service of final orders and judgments. Loss of standing in court is the consequence of an order of default. He loses his right to present his defense, control the proceedings and examine the witness. It does not, however, constitute a waiver of all his rights except that of being heard and of presenting evidence in the trial court. He is not actually thrown out of court. RELIEF FROM AN ORDER OF DEFAULT A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice (Sec.3 (b), Rule 9). Requisites to lift order of default: Verified motion showing: ü Fraud, accident, mistake or excusable neglect; and ü Meritorious defenses. Remedies available to a defendant in default: A party declared in default may, At any time after discovery thereof (from notice) and before judgment, file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable neglect, and that he has meritorious defense; If judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for a new trial under Sec. 1(a) Rule 37; If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Rule 38; and He may also appeal from the judgment rendered against him as contrary to the evidence, or to the law, even if no petition to set aside the order of default has been presented by him. EFFECT OF PARTIAL DEFAULT When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented (Sec. 3(c), Rule 9). Requisites when the dismissal against any of multiple plaintiffs necessarily results in the dismissal of the case: ü Petitioner has a common cause of action against all defendants; and

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ü

All the defendants are indispensable parties to the case.

EXTENT OF RELIEF TO BE AWARDED (Sec. 3 (d), Rule 9) Where a party has been declared in default, the amount of damages that should be adjudged against him cannot exceed the amount alleged in the complaint even if the complainants are able to prove during the reception of evidence a higher amount of damages. If the amount of damages is not specified, the court in cases of default would not be able to make such a determination. ACTIONS WHERE DEFAULT IS NOT ALLOWED (Sec.3 (e) Rule 9) (a) An action for annulment or declaration of nullity of marriage; or (b) Legal separation. 5.

Amended and supplemental pleadings (Rule 10)

HOW PLEADINGS MAY BE AMENDED ü by adding or striking out an allegation or the name of any party, or ü by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (Sec 1, Rule 10) WHERE THERE IS A FAILURE TO STATE A CAUSE OF ACTION: If the complaint failed to aver the fact that certain conditions precedent were undertaken and complied with, the failure to so allege the same may be corrected by an amendment of the complaint. WHERE NO CAUSE OF ACTION EXISTS: A complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Such an action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by the court upon proper motion seasonably filed by the defendant. AMENDMENTS AS A MATTER OF RIGHT A party has the absolute right to amend his pleading, regardless of whether a new cause of action or change in theory is introduced. A pleading may be amended only once as a matter of right before any responsive pleading is filed. ü A complaint may be amended before an answer is served ü An answer may be amended before a reply is served or before the period to file a reply expires ü A reply may be amended anytime within 10 days after it is served.

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The right to amend is not affected by a motion to dismiss or motion for summary judgment or even a motion for judgement on the pleadings. This is because they are all not considered “responsive pleadings.” APPLICABILITY OF MANDAMUS The court would be in error if it refuses to admit an amended pleading when its exercise is a matter of right. This error is correctible by mandamus because the trial court’s duty to admit an amended complaint made as a matter of right is purely ministerial.

Civil Procedure

(b)

(c)

Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will 
be subserved. 
 As safeguard, the court may grant a continuance to enable the objecting party to meet such evidence.

SUPPLEMENTAL PLEADINGS Amendment

AMENDMENTS BY LEAVE OF COURT WHEN LEAVE OF COURT IS REQUIRED (Sec, 3, Rule 10) (1) Substantial amendments (2) When a responsive pleading had already been served RATIONALE Leave of court is required because upon the filing of a responsive pleading, the issues would have been joined. It would prejudice the defendant not to be allowed to amend his answer as well. In such manner, an amendment after the responsive pleading has been filed would incur unnecessary delay.

WHEN

After responsive pleading is filed with leave of court

PURPOSE

EFFECT

Thus, in such cases, the court has the discretion whether or not to allow the intended amendment. FORMAL AMENDMENTS (Sec 4, Rule 10) What can be corrected by formal amendments: ü A defect in the designation of the parties ü Other clearly clerical or typographical errors

CAUSE OF ACTION

The formal amendment must not cause any prejudice the adverse party.

How raised

How formal amendments may be effected: (1) By the court at any stage of the action (2) By the party at its initiative or on motion AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE This is an instance wherein the court acquires jurisdiction over the issues even if the same are not alleged in the original pleadings, where the trial of said issues is with the express or implied consent of the parties. Sec. 5, Rule 10 envisions two situations: (1) No objection to the evidence is raised ü Issues not raised in pleadings are tried by express or implied consent of the parties; they are treated in all respects as if they had been raised. 
 ü Such amendments as may be necessary to cause the pleadings to conform to the evidence may be made upon motion of any party at any time, even after judgment.
 ü Failure to amend does not affect the result of the trial of those issues. 
 (2)

Objection to the evidence is raised (a) Objection on the ground that it is not within the issues made by the pleadings.

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Before responsive pleading is filed matter of right once only

Reason for amendment is available at time of the first pleading Supersedes the original pleading Before responsive pleading is filed may change any time After responsive pleading is filed may change with leave of court May be a matter of right or by leave of court

Supplemental Pleadings

Always with leave of court

Grounds for supplemental pleading arose after the filing of the first pleading Taken with the original pleading

No change in cause of action or theory in the pleading sought to be implemented

Always by leave of court

Supplemental Pleading, defined A supplemental pleading is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. ü This is not a matter of right. ü A supplemental pleading only serves to bolster or add something to the primary pleading. It exists side by side with the original. It assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action. It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint. When the cause of action in the supplemental complaint is different from the cause of action mentioned in the original complaint, the court should not admit the supplemental complaint (Asset Privatization Trust vs. CA, 324 SCRA 533).

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Civil Procedure

The filing of an answer to the supplemental pleading is not mandatory (Chan vs. Chan, 2008).

1.

Rules on payment of docket fees; effect of non-payment

EFFECT OF AMENDED PLEADING

PAYMENT OF DOCKET FEES

ON THE ORIGINAL PLEADING An amended pleading supersedes the original one which it amends. The original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces a new or different cause.

General rule: The court acquires jurisdiction over any case only upon the payment of the prescribed docket fees. Hence, it is mandatory and jurisdictional.

ON ADMISSIONS MADE IN THE ORIGINAL PLEAING Admissions made in the original pleadings cease to be judicial admissions. They are to be considered as extrajudicial admissions. However, admissions in superseded pleadings may be received in evidence against the pleader and in order to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence.

6.

When to file responsive pleadings (Rule 11)

PLEADINGS Answer to the complaint; Answer to 3rd (4th etc) party complaint Answer of a defendant foreign private juridical entity Answer to amended complaint; Answer to amended counterclaim/ cross-claim/ 3rd or 4th etc party complaint/ complaint-in-intervention Answer to counterclaim or cross-claim Reply

Answer to complaint

supplemental

WHEN TO FILE Within 15 days after service of summons; unless a different period is fixed by the court Within 30 days after receipt of summons by such entity If as a matter of right: 15 days after being served with a copy thereof If filing is not a matter of right: 10 days from notice of the order admitting the same Within 10 days from service Within 10 days from service of the pleading responded to Within 10 days from notice of the order admitting the same; unless a different period is fixed by the court

Extension of time to plead • Upon motion and on such terms as may be just, the court may extend the time to plead • The Court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed.

F. Filing and Service of Pleadings, Judgments, Final Orders, and Resolutions

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It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. When the rule on the payment of docket fees is relaxed: (a) Nonpayment at the time of filing does not automatically cause the dismissal of the case. (b) The fee may be paid within the applicable prescriptive or reglementary period. How to determine the amount of the docket fee: Determination of nature of action is essential to determine the amount of the docket fee. Docket fee may be based on: (a) Nature of the action (b) Value of the property involved (c) Value of the demand 2.

Rule 13

FILING Act of presenting the pleading or other paper to the clerk of court (Sec.2, Rule 13, ROC). PAPERS REQUIRED TO BE FILED AND SERVED (a) Judgments (b) Resolutions (c) orders, (d) pleadings subsequent to the complaint (e) written motions (f) notices (g) appearances (h) demands (i) offers of judgment, (j) or similar papers (Sec. 4 Rule 13, Rules of Court) SERVICE Act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. The purpose of requiring a formal service to the lawyer is to maintain a uniform procedure, calculated to place in competent hands the orderly prosecution of a party’s case.

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The actual presence of the offended party and signing of the judgment by the private prosecutor was considered as an actual notice. UPON WHOM SHALL SERVICE BE MADE If a party has not appeared by counsel, then service must be made upon him. If a party has appeared by counsel, then service upon said party shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court (Sec. 2, Rule 13, Rules of Court). The rule is that when a party is represented by counsel in an action in court, notices of all kinds, including motions, pleadings, and orders must be served on counsel and notice to him is notice to the client (People vs. Gabriel) Note: It has been held that notice or service made upon a party who is represented by counsel is a nullity. As a rule, notice to the client and not to his counsel of record is not notice in law unless for instance when the court or tribunal orders service upon the party or when the technical defect in the manner of notice is waived. (Heirs of Benjamin Mendoza vs. CA) Substitution of counsel A lawyer’s withdrawal as a counsel must be made in a formal petition in the case, without which, notice of judgment rendered in the case served on the counsel of record, is, for all legal purposes notice to the client the date or receipt of which is considered the starting point from which the period of appeal prescribed by law shall begin to run. Legal formalities for substitution: ü Written application for substitution ü Written consent of client to substitution ü Written consent of attorney to be substituted, if such consent can be obtained; or if not, ü There must be filed with application for substitution, proof of service of such motion in the manner required by the rules on attorney to be substituted.

Civil Procedure

interlocutory, has juridical existence until and unless it is set down in writing, signed, and promulgated. PERIODS OF FILING PLEADINGS Period Reckoning Point Answer to the Complaint General rule: within 15 days

Service of summons, unless a different period is fixed by the court (Rule 11, Sec. 1) Receipt of summons (Rule 11, Sec. 2)

Foreign private juridical entity defendant, summons through government official: Within 30 days Non-resident Service of extrajudicial defendant, with summons (Rule 14, Sec. 15) extraterritorial service of summon: reasonable time not less than 60 days set by court Answer to amended complaint Amendment was matter Service of a copy of the of right: Within 15 days amended complaint Amendment not matter Notice of the order of right: Within 10 days admitting the same (Rule 11, Sec. 3) Answer to counterclaim or cross-claim Within 10 days From service (Rule 11, Sec 4) Answer to third (fourth, etc)-party complaint Within 15 days Same rule as answer to the complaint (Rule 11, Sec. 5) Reply Within 10 days From service of the pleading responded to (Rule 11, Sec. 6) Answer to supplemental complaint Within 10 days From notice of the order admitting the same, unless a different period is fixed by court

Effect of death of counsel Where the death of the previous attorney is the cause of substitution of the counsel, a verified proof of the death of such attorney must accompany the notice of appearance of new counsel.

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

Papers required to be filed and served (1) judgment (2) resolution (3) order (4) pleading subsequent to the complaint (5) written motion (6) notice (7) appearance (8) demand (9) offer of judgment (10) similar papers (Sec. 4, Rule 13, ROC)

MANNER OF FILING

Time honoured and of constant observance is the principle that no judgment or order, whether final or

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1. PERSONAL (1) By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court. (2) Deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. 2. REGISTERED MAIL ü By sending them through registered mail ü Deemed filed on the date it was deposited with the post office.

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Civil Procedure

The original copies must be presented and plainly indicated as such.

(3)

MODES OF SERVICE PERSONAL SERVICE Can be done by: (1) Delivering personally a copy to the party or his counsel, or (2) Leaving a copy in his office with his clerk or with a person having charge thereof. (3) Leaving the copy between 8am- 6pm, 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, ROC).

There is NO substituted service of judgments and final orders.

Personal service may be either (1) Actual (2) constructive. – through substituted service SERVICE BY MAIL Can be done by: (1) Ordinary Mail - it does not constitute filing until the papers are actually delivered into the custody of clerk or judge
 (a) Service may be done by ordinary mail if no registry service is available in the locality of either sender or addressee (2)

Registered Mail - The date of mailing is the date of filing

Date of filing is determinable from 2 sources: (1) From the post office stamp on the envelope (2) from the registry receipt Filing is done by: (1) depositing in the post office
 (2) In a sealed envelope 
 (3) Plainly addressed to the party or his 
counsel:
 (1) At his office if known (2) Otherwise, at his residence if known (4) Postagefully pre-paid
 (5) With instructions to the postmaster to return the mail to the sender after 10 days if undelivered Service by ordinary mail is allowed only in instances where no registry service exists.

Publication, if the party is summoned by publication and has failed to appear in the action

PRIORITIES IN MODES OF SERVICE AND FILING GENERAL RULE: Whenever practicable, the service and filing of pleadings and other papers shall be done personally. EXCEPTION: Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally A violation of this Rule may be cause to consider the paper as not filed (Sec. 11, Rule 13, ROC) Whenever personal service in filing is practicable it becomes mandatory. WHEN SERVICE IS DEEMED COMPLETE ü Personal service – upon actual delivery. ü Service by ordinary mail – upon expiration of 10 days after mailing, unless the court otherwise provides. ü Service by registered mail – upon actual receipt by the addressee, or 5 days from the date he received the first notice of the postmaster, whichever date is earlier (Sec. 10, Rule 13). ü Substituted service – at the time of such delivery (Sec. 8, Rule 13). The mere return of mail “unclaimed”, is not sufficient proof of service. There must be clear proof of compliance with postal regulations governing the sending and receipt of the notice referred to in Sec.8 Rule 13. PROOF OF FILING AND SERVICE GENERAL RULE: Filing is proven by its existence in the record of the case.

If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13).

EXCEPTIONS: If it is not on record and ü If filed personally – it shall be proved by the wriitted or stamped acknowledgement of its filing by the clerk of court on a copy of the same ü If filed by registered mail – it shall be proved by the registry receipt and by the affidavit of the person who did the mailing containing a full statement of: ü the date and place of depositing the mail in the post office in a sealed envelope addressed to the court ü with postage fully prepaid ü and with instructions to the postmaster to return the mail to the sender after 10 days if not delivered. (Sec 12, Rule 13, ROC)

SERVICE FOR FINAL JUDGMENTS, FINAL ORDERS OR RESOLUTIONS (1) Personal service (2) Registered mail

PROOF OF PERSONAL SERVICE ü Written admission of party served ü Official return of the server; or

There is a legal and conclusive presumption that the date postmarked on the envelope is the date of the mailing. SUBSTITUTED SERVICE

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Green Notes 2019

ü

Civil Procedure

Affidavit of the party serving, containing a full statement of the date, place and manner of service. (Sec. 13, Rule 13, Rules of Court)

PROOF OF SERVICE BY ORDINARY MAIL (1) An affidavit of the person mailing and facts of compliance with the rules (Sec 7, Rule 13, ROC) (2) Registry receipt issued by the mailing officer (Sec 13, Rule 13, ROC) PROOF OF SERVICE BY REGISTERED MAIL ü Affidavit ü Registry receipt issued by the mailing office and the registry return card. (Sec. 13, Rule 13, Rules of Court) Absent any proof of service of the decision, the period of 15 days within which a party may file a motion for new trial does not begin to run against such party. If it admits, however, that it received the copy of the decision on a certain date despite absence of proof service, that date would be the reckoning date of the 15 day period (Republic vs. Bank of the Philippine Island)

G. Summons 1.

Nature and purpose of summons in relation to actions in personam, in rem, and quasi in rem

SUMMONS A coercive force issued by the court to acquire jurisdiction over the person of the defendant. Summons is the writ by which the defendant is notified of the action brought against him the issuance of such is a mandatory requirement. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. The issuance of summons is not discretionary on the part of the court or the clerk of court but is a mandatory requirement. NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM AND QUASI IN REM In ACTIONS IN PERSONAM: ü To acquire jurisdiction over the person of the defendant in a civil case ü To give notice to the defendant that an action has been commenced against him In ACTIONS IN REM AND QUASI IN REM: (1) Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process

SERVICE IN RELATION TO ACTIONS In personam In rem/ Quasi in rem

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Resident (1) Personal service (2) Substituted service (3) Constructive Service (By publication) - if unknown - temporarily absent Non-Resident

(1) (2) (3)

Personal service Substituted service Constructive Service (By publication) - if unknown - temporarily absent

Personal service outside of the country with leave of court Not allowed

OR Publication court

with

leave

of

PERSONAM Purpose: Not only to notify the defendant of the action against him but also to acquire jurisdiction over his person. Service of summons is required even if the defendant is aware of the filing of the action against him. His knowledge of the existence of a case is not one of the modes by which a court acquires jurisdiction over the person of the defendant. REM Purpose: Not the acquisition of jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process. Jurisdiction over the defendant is not mandatory and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res. QUASI IN REM Purpose: Directed against particular persons. Jurisdiction over the person of the defendant is not required, it is the jurisdiction over the res that is essential. Here, judgment is binding only against particular persons and not against the whole world. DIFFERENTIATION OF ACTIONS IN PERSONAM, IN REM AND QUASI IN REM In rem In personam Quasi in rem Directed against Directed against Directed against particular the thing itself particular person person Jurisdiction over Jurisdiction over Jurisdiction over the person of the person of the person is the defendant is the defendant is required not required not required Judgment is binding only upon Judgment is Judgment is the parties binding upon binding against impleaded or particular the whole world successors in persons. interest

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2.

Rule 14

CONTENTS OF THE SUMMONS (SEC 3, RULE 14, ROC.) The summons shall be (1) directed to the defendant (2) signed by the clerk of court under seal 1. contain: (1) name of the court and the names of the parties to the action (2) direction that the defendant answer within the time fixed by the ROC (3) notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. WHO SERVES THE SUMMONS (SEC. 3, RULE 14, ROC.) The summons may be served by ü the sheriff ü sheriff’s deputy ü other proper court officer ü for justifiable reasons, any suitable person authorized by the court issuing the summons VOLUNTARY APPEARANCE Voluntary appearance cures the defect in the service of summons. General rule: Defendant’s voluntary appearance in the action shall be equivalent to service of summons (Sec. 14, Rule 20) Exceptions ü Special Appearance to file a MTD ü Inclusion in the MTD of grounds other than lack of Jurisdiction over the defendant’s person An absence of service of summons or an invalid service of summons will not prevent the court from acquiring jurisdiction over the defendant as long as he performs acts that could be construed as voluntary appearance. His voluntary appearance shall be equivalent to service of summons. PERSONAL SERVICE Note that there is a difference between service in person of the defendant and personal service which is contemplated in Rule 13. The latter refers to service of pleadings, while the former referes to service of summons. In an action strictly in personam, service in person on the defendant is the preferred mode of service. This is to be done by handing a copy to the defendant in person. If he refuses to receive and sign for it, the remedy of the server is to tender the summons to the defendant. If the defendant refuses the service, the server should not resort to substituted service immediately. He must “tender” the summons to him. Tender of summons is not a separate mode of service. It is part of service in person.

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Civil Procedure

SUBSTITUTED SERVICE Substituted service may be availed of if “for justifiable causes, the defendant cannot be serviced within a reasonable time.” (Sec. 7, Rule 14) REASONABLE TIME - MEANING A period of time longer than that demarcated by the word “prompt” and presupposes that a prior attempt at personal service had failed. Reasonable time depends on the: 1. Necessary time under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done. For substituted service to be available there must be: 2. Several attempts by the sheriff to personally serve the summons within a reasonable period which eventually resulted in failure to prove impossibility of prompt service. “Several attempts” means at least three preferably on at least two different dates.

(3) tries,

3.

Citation by the sheriff in his Return of Summons why such efforts were unsuccessful. Only then can the impossibility of service be confirmed or accepted. How substituted service is made (1) By leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or “a person of suitable age and discretion” One who has attained the full age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of summons “discretion” Ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. the person must have a “relation of confidence” to the defendant. (2)

By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.

“a competent person in charge of the office or regular place of business “ 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” not necessary that the person in charge be specifically authorized to receive the summons. It is enough that he appears to be in charge. Where the substituted service has been validly served, its validity is not affected by the defendant’s failure to

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actually receive the summons from the person with whom the summons has been left. It is immaterial that the defendant does not in fact receive actual notice. The rule does not require the sheriff or any authorized server to verify that the summons left in the defendant’s resident or office was actually delivered to the defendant. CONSTRUCTIVE SERVICE (BY PUBLICATION) General rules (1) Constructive service is available only in actions in rem or in quasi in rem. (2) It is not available as a means of acquiring jurisdiction over the person of the defendant in action in personam. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. General rule: Publication is not a mode of service in an action in personam against a resident defendant. Exception: Section 14 and 16 of Rule 14 (a) Service upon defendant whose identity or whereabouts are unknown. (Sec 14) (b) Residents temporarily out of the Philippines. (Sec 16) (c) Extraterrirotial service (Sec. 15) Constructive service always requies permission of the court. SERVICE UPON DEFENDANT WHOSE IDENTITY OR WHEREABOUTS IS UNKNOWN (Sec. 14, Rule 14) Applies when: 4. Defendant is sued as an unknown owner; 
or 5. His whereabouts are unknown and cannot be ascertained with diligent inquiry 
 Service of summons may effected through any of the following modes: (1) by personal service as in Sec. 6 of Rule 14; (2) by publication in a newspaper of general circulation together with a registered mailing of a copy of the summons and the order of the court to the last known address of the defendant; or (3) by any manner the court may deem sufficient.

SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES (Sec. 16, Rule 14) Applies when: (1) Defendant is a resident of the Philippines; (2) Is temporarily out of the country

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Civil Procedure

A resident defendant is temporarily out of the country, if he has a residence or place of business in the Philippines, and because he cannot be served within a reasonable time because of his absence in the Philippines, this absence would now trigger the application of the rule on substituted service of summons. SPECIAL CLASSES OF DEFENDANTS SERVICE UPON ENTITY WITHOUT JURIDICAL PERSONALITY (Sec. 8, Rule 14) Applicable in cases where: (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 
 Service is effected upon all of them by: ü Serving summons upon any of them; or ü Serving summons upon the person in charge of their office or place of business SERVICE UPON DOMESTIC PRIVATE JURIDICAL PERSONALITY (Sec. 11, Rule 14) When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made upon the following persons: ü President ü managing partner ü general manager ü corporate secretary ü treasurer, or ü in-house counsel This enumeration has been held to be limited to the persons enumerated and summons cannot be served upon any other person. SERVICE UPON FOREIGN PRIVATE JURIDICAL PERSONALITY (Sec. 12, Rule 14) Service upon a foreign private juridical entity which has transacted business in the Philippines may be made on (a) its resident agent designated in accordance with law for that purpose, or, (b) if there be no such agent, on the government official designated by law to that effect, or (c) on any of its officers or agents within the Philippines When a foreign corporation has designated a person to receive summons on its behalf pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious.

SERVICE UPON PUBLIC CORPORATIONS (Sec. 13, Rule 14) Service may be effected on: ü the Socilitor General, when the defendant is the Republic of the Philippines ü the executive head, or on such other officer or officers as the law or the court may direct, if the

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defendant is a province, city or municipality, or like public corporations. EXTRATERRITORIAL SERVICE Extraterritorial service of summons applies when the following requisites concur: (Sec. 15, Rule 14) ü The defendant is a non-resident; ü He is not found in the Philippines; and ü The action against him is either in rem or quasi in rem. It does not apply to a defendant who is a resident of the Philippines. It also does not apply to an action in personam. The specific actions, which are either in rem or quasi in rem that will justify the application of extraterritorial service of summons in actions involving a non-resident are: (1) Actions that affect the personal status of the plaintiff; (2) Actions which relate to, or the subject matter of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (3) Actions in which the relief demanded consists, wholly or in part, in excluding the defendant form an interest in property located in the Philippines; and (4) When the defendant’s property has been attached in the Philippines. MODES OF EXTRATERRITORIAL SERVICE When the conditions for the applicability of extraterritorial service of summons are complied with, the following are the alternative modes of extraterritorial service, all of which require a prior leave of court: (1) By personal service as provided in Sec. 6 of Rule 14 governing ‘service in person on defendant’; (2) By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and the order of the court shall be sent by registered mail to the last known address of the defendant; or (3) In any manner the court may deem sufficient. The personal service in Sec. 6 of Rule 14 will not have the effect of acquiring jurisdiction over the non-resident defendant even if the summons and the copy of the complaint are personally received by him in the country where he may be found. This is due to the rule that a non-resident defendant who refuses to come to the country voluntarily remains beyond the personal processes over him. Summons is served upon the defendant not for the purpose of vesting the court with jurisdiction over the person of the defendant but merely for satisfying the due process requirement. In proceedings in rem or quasi in re, jurisdiction over the defendant is not required as long as the court acquires jurisdiction over the res. Compliance with due process is actually the underlying process of all modes of extraterritorial service. SERVICE UPON PRISONERS AND MINORS

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Civil Procedure

SERVICE UPON PRISONER Serve upon the officer having management of the jail/prison SERVICE UPON MINORS AND INCOMPETENTS Serve upon the minor/incompetent and on his legal guardian If there is no guardian Plaintiff may apply for the appointment of a guardian ad litem If minor May serve on his parents SUMMONS WHEN COMPLAINT IS AMENDED General rule: An amended pleading supersedes the original one that it amends Hence, it does not ipso facto follow that the service of a new summons is required whenever a complaint is amended. Where the defendant has already appeared before the trial court by virtue of a summons on the original complaint - the amended complaint may be served upon them without need for another summons, even if new causes of actions are alleged. When the defendant has not yet appeared in court and no summons had been validly served - new summons on the amended complaint must be served on them. (1) It is not the change in the cause of action that gives rise to the need to serve another summons for the amended complaint, but rather the acquisition of jurisdiction over the person of the defendant. If the trial court has not yet obtained jurisdiction over them, a new service of summons for the amended complaint is required. PROOF OF SERVICE General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is presumption of regularity Without return of service, Burden is on plaintiff Exception Doctrine of substantial compliance If defendant actually received summons and complaint despite all these technicalities Proof of service, how it is done (1) If personal or substituted service: In writing by the server and shall: 1. Set forth the manner/place/date of service 2. Specify any papers which have been served with the process and the name of the person who received the same 3. Be sworn to when made by a person other than a sheriff or his deputy (2)

If by publication (SEC 19, RULE 14, ROC)

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(a) (b)

Civil Procedure

Affidavit of the printer, his foreman, principal clerk, or the editor, business/advertising manager, with a copy of the publcation attacked Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address

RETURN (SEC. 4, RULE 14, ROC.) When the service has been completed, the server shall, within five (5) days therefrom: (1) serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel; and (2) shall return the summons to the clerk who issued it, accompanied by proof of service. ALIAS SUMMONS (SEC 5, RULE 14, ROC) Upon plaintiff’s demand, the clerk may issue an alias summons if either: (1) Summons is returned without being served on any/all of the defendants. (2) Summons was lost. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service.

H. Motions 1.

In general (Rule 15)

MOTIONS IN GENERAL DEFINITION OF A MOTION An application for relief other than by a pleading. General rule A motion cannot pray for judgment. Exceptions (1) Motion for judgment on the pleadings (2) Motion for summary judgment (3) Motion for judgment on demurrer to evidence MOTIONS VERSUS PLEADINGS Motion Pleading Contains allegations of Contains allegations of facts the ultimate facts Prays for a relief Prays for a relief Grant of the relief does not Grant of relief extinguish the action extinguishes the action (interlocutory relief) (final relief) Generally in writing (with Always in writing some exceptions) Omnibus motion rule, defined A motion attacking a pleading/ order/ judgment/ proceeding must include all objections then available. Purpose: To require movant to raise all available relief/ objections/ defense during a single opportunity to avoid multiplicity of suits and discourage piece-meal objections

Exception: When the court’s jurisdiction is in issue: (1) Lack of jurisdiction over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription. CONTENT AND FORMS OF MOTIONS (1) Relief sought to be obtained (2) Grounds upon which it is based (3) Supporting affidavits, if: a) Required by the Rules; or b) Necessary to prove facts alleged in the motion (4) Motions raising factual issued must be supported by affidavits. NOTICE OF HEARING AND HEARING OF MOTIONS 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; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)] Motion and notice of hearing must be served at least 3 days before the date of hearing; Rule 15, Sec. 4 Three-day Notice Rule General rule: Strict compliance is required Exception: Not absolute. When the adverse party was given a reasonable opportunity to study the motion and oppose it, then strict compliance with the three-day notice rule may be dispensed with (Microsoft Corporation and Adobe Systems Incorporated vs. Farajallaj, 2014). Motion and notice shall be furnished at least 3 days before the intended hearing of the motion, unless the Rules provide for an over-period such as in summary judgments. Purpose To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. Exceptions (a) Ex parte motions; (b) Urgent motions; (c) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; (d) Motions for summary judgment which must be served at least 10 days before its hearing.

OMNIBUS MOTION RULE A motion attacking a pleading, order, judgment, or proceeding must include all objections then available. All objections not included in the motion are deemed waived.

General rule: All objections not included in the motion are deemed waived.

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When a motion to dismiss is filed, all grounds for objection available at the time the motion is filed must be invoked in the motion. This is required under the “Omnibus Motion Rule.” The objections which are not invoked are deemed waived. Not waived even if not invoked in a Motion to Dismiss): (1) Lack of jurisdiction over subject matter (2) Litis pendentia (3) Res judicata (4) Prescription Note: The Omnibus Motion Rule applied only when a motion to dismiss is filed. If no motion to dismiss is filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6, Rule 16) LITIGATED AND EX PARTE MOTION A litigated motion is one which requires the parties to be heard before a ruling on the motion is made by the court. Sec. 4 establishes the general rule that every written motion is deemed a litigated motion. An ex parte motion is one which does not require that the parties be heard, and which the court may act upon without prejudicing the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 2). PRO-FORMA MOTIONS A motion failing to indicate time and date of the hearing. 2.

Motion to dismiss (Rule 16)

MOTION TO DISMISS IN GENERAL A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint. ü

It hypothetically admits the facts stated in the complaint.

ü

It is not a responsive pleading.

ü

It is subject to the omnibus motion rule since it is a motion that attacks a pleading.

Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party.

Exception: (a) Cases where the court may dismiss a case motu propio; (Rule 9, Sec. 1) (b) Failure to prosecute; (Rule 17, Sec. 3) (c) Sec. 4, Revised Rule on Summary Procedure.

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Civil Procedure

GROUNDS (1) Lack of Jurisdiction over the defendant’s person; (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. NOTE: Motion may only be based on the grounds enumerated in Sec. 1, Rule 16. These grounds must be alleged on the motion to dismiss. 1. LACK OF JURISDICTION OVER THE DEFENDANT’S PERSON The objection of Lack of Jurisdiction over the person on account of lack of service or defective service of summons, must be raised: (1) At the very first opportunity (2) Before any voluntary appearance is made 2. LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM If the complaint shows on its face Lack of Jurisdiction, the court may dismiss the case outright instead of hearing the motion. A Motion To Dismiss on the ground of Lack of Jurisdiction over the subject matter may be raised either: (1) Before answer; (2) After answer is filed; (3) After hearing had commenced; (4) At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer. 3. IMPROPER VENUE Unless and until the defendant objects to the venue in a Motion To Dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. A stipulation between the parties as to venue does not preclude the filing of suits in the residence of plaintiff/defendant under Rule 4, Sec. 2(b). In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue, an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. If the court erroneously denies the MTD, the remedy is prohibition. 4. PLAINTIFF’S LACK OF LEGAL CAPACITY TO SUE The plaintiff lacks legal capacity to sue:

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(1) (2)

When he does not possess the necessary qualification to appear at the trial When he does not have the character which he claims, which is a matter of evidence

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. 5. LITIS PENDENTIA It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later. Requisites [Republic vs. Carmel Development, Inc. (2002)] (1) Identity of parties, or at least such as representing the same interest in both actions (2) Identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (3) Identity of the two cases such that judgment in one, regardless of which party is successful, would amount to res judicata in the other 6. RES JUDICATA Requisites: (Topacio v. Banco Filipino Savings and Mortgage Banks, 2010) (1) Former judgment must be final; (2) Judgment must be on the merits; (3) The court which rendered it had jurisdiction over subject matter and parties; (4) There must be between the first and the second actions, identity: (5) identity of parties, (6) subject matter, and (7) causes of action. There can be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Rule 17, Sec. 3. For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata. Res Judicata is a concept of civil law and thus, has no bearing on a criminal proceeding. Hence, the argument that the dismissal of a case during a preliminary investigation bars a further reinvestigation because of the doctrine of res judicata , is untenable (Trinidad v. Office of the Ombudsman, 2007) Rationale: (1) Public policy and necessity makes it the interest of the State that there should be an end to litigation; (2) The hardship on the individual that h should be vexed twice for the same cause. (Arenas vs. CA, 2000) TWO CONCEPTS OF RES JUDICATA a. BAR BY PRIOR JUDGMENT Bars the prosecution of a second action upon the same claim, demand or cause of action.

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Civil Procedure

b. CONCLUSIVENESS OF JUDGMENT States a fact or question which was an issue in a former suit and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different cause of action, while the judgment remains unreversed by the proper authority [Moraga v. Spouses Somo, 501 SCRA 118] 7. STATUTE OF LIMITATIONS Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. 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. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time

Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time

8. COMPLAINT STATES NO CAUSE OF ACTION Failure to state a cause of action (not lack of cause of action) is the ground for a Motion To Dismiss. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action. A Motion To Dismiss based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. 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, 1992)

FAILURE TO STATE Insufficiency of the allegations in the pleadings May be raised in the MTD at the any time before the filing of the answer to the complaint or pleadings asserting a claim Can be made at the earliest stages of an action

NO CAUSE OF ACTION Insufficiency of factual basis for the action May be raised at any time

Made after questions of fact have been resolved on the basis of stipulations, admissions or evidence presented

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Without prejudice Based on fixed time

Civil Procedure

With prejudice Not based on fixed time

9. EXTINGUISHED CLAIM That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished. 10. UNENFORCEABLE CLAIM UNDER THE STATUTE OF FRAUDS Those stated under Article 1403(2) of the Civil Code which enumerates contracts which needs to be evidenced by some note or memorandum to be enforceable. This can be filed even if the absence of the cause of action does not appear on the fact of the complaint. (Yuviengco et al. v. Dacuycuy, et. al, 1981) 11. NON-COMPLIANCE WITH A CONDITION PRECEDENT Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the case on the ground of non-compliance with a condition precedent. RESOLUTION OF MOTION A motion to dismiss is a litigated motion and, hene, should be heard. Hearing and Order (1) During the hearing of the motion, parties shall submit: [Rule 16, Sec. 2] ü Their arguments on questions of law; ü Their evidence on questions of fact. Exception: Those not available at that time. (2) If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same. (3) After the hearing, the court may either: [Rule 16, Sec. 3] (a) Dismiss the action/claim; (b) Deny the Motion To Dismiss; (c) Order the amendment of pleadings. (4) The court cannot defer the resolution of the Motion To Dismiss for the reason that the ground relied upon is not indubitable. (5) The court’s resolution on the Motion To Dismiss must clearly and distinctly state the reasons therefor. REMEDIES of PLAINTIFF WHEN COMPLAINT IS DISMISSED (1) Refile, if dismissal does not amount to adjudication on the merits (2) Appeal, if the ground bars re-filing (3) Petition for Certiorari, if dismissal is tainted with grave abuse of discretion

REMEDIES of DEFENDANT WHEN MOTION IS DENIED General Rule: Filing an answer and going through the regular trial process, and may later file a timely appeal for the denial of the MTD

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Exception: Assail denial through certiorari, prohibition, or mandamus, if there is grave abuse of discretion amounting to lack of jurisdiction. EFFECTS OF DIMISSAL OF COMPLAINT ON CERTAIN GROUNDS General rule: The action/claim may be re-filed. Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/ demand; (4) Unenforceability under the Statute of Frauds. [Rule 16, Sec. 1 (f),(h),(i)] WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES If no Motion To Dismiss was filed, the grounds in Rule 16, Sec. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed. BAR BY DISMISSAL As a general rule, the action/claim may be re-filed. EXCEPTION: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/demand; (4) Unenforceability under the Statute of Frauds. IF MOTION TO DIMISS IS DENIED Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his Motion to Dimiss (but not less than 5 days) computed from his receipt of notice of the denial. IF PLEADING IS ORDERED TO BE AMENDED Movant must file his answer within the period under Rule 11, counted from service of the amended pleading (unless the court gives a longer period). On other grounds and omnibus motion rule Motion To Dismiss based on the following grounds may be filed even after filing an answer: [Rule 9, Sec. 1] 1. Lack Of Jurisdiction over subject-matter; 2. Litis pendentia; 3. Res judicata; 4. Prescription. Dismissal of the complaint under Rule 16, Sec. 6 is without prejudice to the prosecution in the same or in a separate action of a counterclaim pleaded in the answer. DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER RULE 33 MTD under Rule 33 MTD under Rule 16 (Demurrer to evidence) Based on preliminary Based on insufficiency of objections evidence May be filed by any May be filed only by the defending party against defendant against the

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whom a claim is asserted in the action Should be filed within the time for, but prior to, the filing of the defending party’s answer to the pleading asserting the claim against him

complaint of the plaintiff

If denied, defendant answers; else, he may be declared in default. If granted, plaintiff may appeal or if a subsequent case is not barred, he may re-file the case

If denied, defendant may present evidence. If granted, plaintiff appeals and the order of the dismissal is reversed; the defendant loses his right to present evidence.

3.

May be filed only after the plaintiff has completed the presentation of his evidence

Motion for bill of particulars (Rule 12)

MOTION FOR BILL OF PARTICULARS - DEFINITION It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/ particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. It is filed by the plaintiff pursuant to a court order issued upon granting a motion for Bill of Particulars filed by the defendant before the latter files an answer. In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. BILL OF PARTICULARS IN CIVIL AND CRIMINAL CASES Civil More particularized outline of a pleading; in the nature of a more specific allegation of the facts recited in the pleading.

The purpose is to enable a party to prepare his responsive pleading properly.

Criminal Details items or specific conduct not recited in the Information but nonetheless pertain to or are included in the crime charged. To enable an accused: (1) to know the theory of the government’s case; (2) to prepare his defense and to avoid surprise at the trial; (3) to plead his acquittal or conviction in bar of another prosecution for the same offense; and, (4) to compel the prosecution to observe

PURPOSE To seek an order from the court directing the pleader to submit a bill of particulars which avers matters with “sufficient definiteness or particularity” to enable the movant to properly prepare his responsive pleading. (Sec. 1, Rule 12)

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It is not to enable the movant to prepare for trial. (Riano) The only question to be resolved in a motion for a Bill of Particulars is whether or not the allegations in the complaint are averred with sufficient definiteness/particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. A Bill of Particulars becomes part of the pleading for which it was intended. (Sec. 6, Rule 12) WHEN APPLIED FOR (1) Before responding to a pleading (2) If the pleading is a reply, within 10 days from service thereof What it should point out (1) The defects complained of; (2) The paragraph wherein they are contained; (3) The details desired. ACTION OF THE COURT (1) Deny; (2) Grant the motion outright; (3) Allow the parties the opportunity to be heard COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE COMPLIANCE WITH THE ORDER If motion for Bill of Particulars is granted wholly/partially: (1) Within 10 days from notice of order, Bill of Particulars or a more definite statement should be submitted (unless court fixes a different period). (2) BOP or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party. EFFECT OF NON-COMPLIANCE In case of non-compliance or insufficient compliance with the order for Bill Of Particulars, the court: (1) May order the striking out of the pleading (or portion thereof) to which the order is directed; OR (2) Make such order as it may deem just. If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. (Sec. 4, Rule 12; Sec. 3, Rule 17) 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) EFFECT ON PLEADING

THE

PERIOD

TO

FILE

RESPONSIVE

A Motion for Bill of Particulars interrupts the period to file a responsive pleading.

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The movant may file his responsive pleading: (1) Within the period he was entitled to at the time the motion was filed; OR (2) Within 5 days, whichever is higher. Reckoning period to file responsive pleading: (1) Service of the Bill of Particulars or more definitive pleadings; OR (2) Notice of denial of his Motion for Bill of Particulars.

An order granting a motion to dismiss based on the following grounds below enumerated shall bar the refilling of the same claim or action

NOTE: Motion of Bill of Particulars is NOT an alternative remedy with a Motion to Dismiss.

I.

Dismissal

MOTION TO DISMISS IN GENERAL A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint. ✓ It hypothetically admits the facts stated in the complaint. ✓ It is not a responsive pleading. ✓ It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party. Exception: (a) Cases where the court may dismiss a case motu propio; (Rule 9, Sec. 1) (b) Failure to prosecute; (Rule 17, Sec. 3) (c) Sec. 4, Revised Rule on Summary Procedure. GROUNDS (1) Lack of Jurisdiction over the defendant’s person; (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. 1.

Kinds a.

With prejudice vs. without prejudice

WITH PREJUDICE

WITHOUT PREJUDICE

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• • •

Res Judicata Prescription Unenforceable under Statute of Frauds

b.

Occurs when the plaintiff has either filed the case in the wrong court, has come to the court unprepared due to no fault of his own, or there is some other issue that needs to be taken care of before the case can be heard. A dismissal without prejudice enables the plaintiff to re-file the lawsuit at a later time. • Section 6 of Rule 16 • All other not mentioned in the other column

Dismissals which have an effect of an adjudication on the merits

Dismissal upon notice by plaintiff A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. Dismissal due to fault of plaintiff If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

2.

Rule 17

DISMISSAL UPON NOTICE BY THE PLAINTIFF Dismissal here is effected not by motion but by mere notice before the service of either: 1. The answer; 2. A motion for summary judgment. (Sec. 1, Rule 17) It is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies, said order merely confirms a dismissal already effected by the filing of the notice of dismissal. Since the order issued by the Court merely confirms the

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dismissal, it follows that the court does not have to approve the dismissal because it has no discretion on the matter (Riano, 2009) General Rule: The dismissal is without prejudice. Exception (1) If the notice of dismissal provides that it is with prejudice. ü The dismissal is still with prejudice even it the notice of dismissal does not so provide, where such notice is premised on the fact of payment by the defendant of the claim involved. (Serrano v. Cabrera, 1953) (2) 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. The second notice of dismissal will bar the refilling of the action because it will operate as an adjudication of the claim upon merits. Accordingly, for a dismissal to operate as an adjudication upon the merits, i.e., with prejudice to the re-filing of the same claim, the following requisites must be present: (1) (2) (3) (4)

There was a previous case that was dismissed by a competent court; Both cases were based on or include the same claim; Both notices for dismissal were filed by the plaintiff; and When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground that the latter paid and satisfied all the claims of the former.

DISMISSAL UPON MOTION OF PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM Dismissal of the complaint is subject to the court’s discretion and upon such terms and conditions as may be deemed proper by court Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. EFFECT ON EXISTING COUNTERCLAIM: If defendant pleaded a counterclaim prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be without prejudice to the defendant’s right to either: (1) Prosecute his counterclaim in a separate action; (2) Have the counterclaim resolved in the same action, by manifesting such preference within 15 days from being notified of plaintiff’s motion for dismissal. General Rule: Dismissal is without prejudice Exceptions:

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(1) When otherwise stated in the motion to dismiss; OR (2) When stated to be with prejudice in the order of the court Court approval of the court is necessary in the dismissal/compromise of a class suit. DIMISSAL DUE TO THE FAULT OF PLAINTIFF A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. The dismissal in this case will be through reasons attributed to his fault. Sec 3 Rule 17 provides the grounds for dismissal: The dismissal due to the fault of the plaintiff may be done by the court on its own motion (motu proprio) or upon a motion filed by the defendant (Sec 3, Rule 17, Rules of Court) (1) The failure of the plaintiff, without justifiable reasons, to appear on the date of the presentation of his evidence in chief; •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. (2) The failure of the plaintiff to prosecute his action upon a reasonable length of time; •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. (3) The failure of the plaintiff to comply with the Rules of Court; or (4) The failure of the plaintiff to obey any order of the court. EFFECT OF DISMISSAL UNDER SEC. 3, RULE 17 General Rule: Dismissal is with prejudice and operates as an adjudication on merits Exception: (1) Court declares otherwise; OR (2) Court has yet to acquire jurisdiction on the person of the defendant. The dismissal due to the fault of the plaintiff may be done by the court on its own motion (motu proprio) or upon a motion filed by the defendant. (Sec 3, Rule 17, Rules of Court) DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT The dismissal of the complaint under Sec. 2 of Rule 17 i.e., because of the fault of the plaintiff, is without prejudice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action. This Rule applies to the dismissal of counterclaims, crossclaims or 3rd-party complaints.

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J. Pre-trial (Rule 18) CONCEPT OF PRE-TRIAL Pre-trial is mandatory in civil cases. In a civil case, it is not the court which initiates the setting of the case for pre-trial. It is set at the instance of the plaintiff. It shall be the duty of the plaintiff to promptly file a motion to set the case for pre-trial. This motion of the plaintiff is an ex parte motion, thus need not be subject of a hearing. The motion for pre-trial is filed within 5 days from the last pleading. If the plaintiff fails to file the said motion within the period, the branch clerk of court shall issue notice of pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).

Civil Procedure

Exceptions: A party’s non-appearance may be excused only if either 1. A valid cause is shown for it 2. A representative appears in his behalf, fully authorized in writing: a. To enter into an amicable settlement b. To submit to alternative modes of dispute resolution c. To enter into stipulations/admissions of facts and of documents EFFECT OF FAILURE TO APPEAR AT THE PRE-TRIAL Who fails to Effect appear Dismissal of the action, with prejudice Plaintiff unless otherwise ordered by the court Cause to allow the plaintiff to present his evidence ex-parte and the court to Defendant render judgment on the basis thereof

LAST PLEADING: The last permissible pleading a party can file is the reply to the answer to the last pleading asserting the claim. Where the last pleading has not yet been served and filed, the case is not yet ready for pretrial . However, the last pleading need not be literally construed as one having been served and filed. For purposes of pre-trial, the expiration of the period for the filing the last pleading without it having been served and filed is sufficient.

BY THE PLAINTIFF Since the dismissal of the action shall be with prejudice unless otherwise provided, the same shall have the effect of an adjudication on the merits thus, final.

NATURE AND PURPOSE

Default by defendant Upon motion and notice to defendant Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence

Pre-trial is a procedural device held prior to the trial for the court to consider the following purposes (Sec. 2, Rule 18): (a) (b) (c) (d) (e) (f) (g) (h) (i)

Possibility of amicable settlement or submission to alternative modes of dispute resolution Simplification of issues Necessity or desirability of amendments to the pleadings Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof Limitation of number of witnesses Advisability of a preliminary reference of issues to a commissioner Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist Advisability or necessity of suspending the proceedings Such other matters as may aid in the prompt disposition of the action

NOTICE OF PRE-TRIAL Notice is important that it would be grave abuse of discretion for the court to allow the plaintiff to present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive through his counsel a notice of pre-trial. APPEARANCE OF PARTIES General rule: It shall be the duty of both the parties and their counsels to appear at the pre-trial. (Sec. 4, Rule 18)

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BY THE DEFENDANT The order allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is therefore, merely interlocutory hence, not appealable.

Relief awarded must be the same in nature and amount as prayed for in the complaint

As in Default Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

PRE-TRIAL BRIEF The parties shall file with the court their respective pretrial briefs which shall be received at least 3 days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party. The pre-trial brief shall contain the following matters: (1) Statement of their willingness to enter into an amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof (2) Summary of admitted facts and proposed stipulation of facts (3) Issues to be tried or resolved (4) Documents or exhibits to be presented, stating the purposes thereof (5) Manifestation of their having availed of their intention to avail of the discovery procedures or referral to commissioners (6) Number and names of the witnesses and he substance of their respective testimonies

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Civil Procedure

EFFECT OF FAILURE TO FILE PRE-TRIAL BRIEF The failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

(2) Joining the defendant (3) Asserting his right against both plaintiff and defendant,

RECORD OF PRE-TRIAL The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order

REQUISITES FOR INTERVENTION

PRE-TRIAL ORDER This order of the court is issued by the court upon the termination of the pre-trial. Pre-trial order shall be issued within 10 days after the termination the pre-trial (A.M. No. 03-109-SC, July 13, 2004) CONTENTS (1) Matters taken up in the pleadings (2) The action taken thereon (3) The amendments allowed to the pleadings, and (4) The agreements or admissions made by the parties as to any of the matters considered (5) Should the action proceed to trial, the order shall, explicitly define and limit the issues to be tried. General rule: The contents of the order shall control the subsequent course of the action Exception: (1) Modified before trial to prevent manifest injustice (2) Amendment to conform to evidence (3) Issues implied include therein or may be inferable therefrom by necessary implication [Philippine Export and Foreign Loan Guarantee Corp. v. Amalgated Management and Development Corp. (2011)] DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE AND PRE-TRIAL IN A CRIMINAL CASE Civil Case [Rule 18] Set when the plaintiff moves ex parte to set the case for pre-trial Made after the last pleading has been served and filed

Possibility of an amicable settlement is an important objective Sanctions for nonappearance are imposed upon plaintiff and defendant Pre-trial brief is specifically required

Criminal Case [Rule 118] Set by the court, no motion required from the parties Ordered by the court after arraignment, and within 30 days from the date the court acquired jurisdiction over the person of the accused Possibility of an amicable settlement is not among its purposes Sanctions are imposed upon the counsel for the accused or the prosecutor Pre-trial brief is specifically required

not

K. Intervention (Rule 19) A legal proceeding by which a third person is permitted by the court to become a party by either: (1) Joining the plaintiff

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(1) Legal interest ü in the matter in controversy; or ü in the success of either of the parties; or ü against both parties; or ü person 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) Intervention will not unduly delay or prejudice the adjudication of rights of original parties; (3) Intervenor's rights may not be fully protected in a separate proceeding. [Ortega v. CA (1998)] Intervention is ancillary and supplemental to an existing litigation. Hence the final dismissal of the principal action results into dismissal of said ancillary action. FACTORS TO BE CONSIDERED (1) Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties; and (2) Whether the intervenor’s rights may be fully protected in a separate proceeding. WHO MAY INTERVENE 1. One who has legal interest in the matter in litigation. 2. One who has a legal interest in the success of either of the parties 3. One who has an interest against both parties 4. One who is so situated as to be adversely affected by the distribution of other disposition of property in the custody of the court or of an officer HOW TO INTERVENE (a) With leave of court (b) Motion to intervene may be filed at any time before the rendition of judgment by the trial court 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 defendant in resisting a claim against the latter INTERVENTION DISTINGUISHED Intervention Ancillary Proper in any of the four situations mention in Rule 19

AND

INTERPLEADER,

Interpleader Original Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest which in whole or in part is not disputed

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Civil Procedure

Defendants are already original parties to the pending suit

by the other parties Defendants are being precisely to implead them

b. sued

TIME TO INTERVENE Motion may be filed at any time before rendition of judgment. Answer to complaint-in-intervention must be filed within 15 days from notice of the order admitting the complaintin-intervention, unless a different period is fixed by the court. REMEDY FOR INTERVENE (a)

(b)

THE

DENIAL

OF

MOTION

TO

If intervention is denied ü Appeal by the aggrieved party ü Mandamus, if there is grave abuse of discretion If intervention is granted ü Petition for certiorari for improper granting of intervention

L. Subpoena (Rule 21) Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. (Sec.1, Rule 21) SUBPOENA DUCES TECUM A process directed to a person which requires him to bring with him the following: a. any books b. documents OR c. other things under his control FORMS AND CONTENTS a. Name of the court b. Title of the action or investigation; It shall be directed to the person required to attend c. Directed to the person required to attend d. Must contain a reasonable description of books, documents or things demanded which must appear to the court prima facie relevant GROUNDS FOR QUASHING (1) It is unreasonable or oppressive (2) The articles sought to be produce do not appear to be relevant (3) Person asking for subpoena does not advance cost of production (4) Witness fees and kilometrage was not served For subpoena duces tecum to issue, the court must satisfy: a. Test of relevancy – the books, documents or other things requested must appear prima facie relevant to the issue subject of the controversy

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Test of definiteness – such books must be reasonably described by the parties to be readily identified

SUBPOENA AD TESTIFICANDUM Process directed to a person requiring him to attend and to testify at: a. the hearing or the trial of an action b. at any investigation conducted by competent authority OR c. for the taking of his deposition FORMS AND CONTENTS a. Name of the court b. Title of the action or investigation c. Directed to the person required to attend GROUNDS FOR QUASHING a. Witness is not bound thereby b. Witness fees and kilometrage was not served SERVICE OF SUBPOENA Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. (Sec.6, Rule 21, ROC). COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT The court which issued the subpoena may, upon proof of service and failure of witness to attend, issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause (Sec. 8, Rule 21) The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it. (Sec. 9, Rule 21) QUASHING OF SUBPOENA The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

M. Computation of Time (Rule 22) How to compute time:

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•

•

The day of the act or event from which designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period falls on a Saturday, a Sunday or a legal holiday in the place where the court sits, the time shall not run until the next working day.

When the law speaks of: Year Month

Day Night

365 days 30 days *If months are designated by their name, they shall be computed by the number of days which they respectively have 24 hours Night from sunset to sunrise

Effect of interruption: • The allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof • The day of the act that caused the interruption shall be excluded in the computation of the period.

N. Modes of Discovery 1.

Depositions (Rules 23 and 24)

DEPOSITION PENDING ACTION; DEPOSITION BEFORE ACTION OR PENDING APPEAL DEPOSITION PENDING ACTION By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. (Rule 23; 2010 Bar) DEPOSITION BEFORE ACTION OR PENDING APPEAL A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party. (Rule 24) MEANING OF DEPOSITION The taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. (Riano) They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in court. (Darmarias Garments v. Reyes, 225 SCRA 622) Two Methods for Taking Deposition (1) Oral examination

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(2)

Written interrogatory

USES (1) Any part or all of the deposition, so far as admissible under the rules of evidence, may be used ü against any party who was present or represented at the taking of the deposition, or ü against one who had due notice of the deposition. The deposition or any of its parts, may be used at the trial or upon the hearing of a motion or an interlocutory proceeding (2) The deposition may be used for the following purposes: ü For contradicting or impeaching the testimony of the deponent as a witness; ü For any purpose by the adverse party where the deponent is a party or at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party; ü For any purpose by any party, where the deponent is a witness, whether or not a party, if the court finds that (i) the witness is dead, (ii) that the witness resides more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or (v) when exceptional circumstances exists, upon application and notice (Riano). SCOPE OF EXAMINATION Deponent may be examined regarding any matter: (1) Not privileged; (2) Relevant to the subject of the pending action (3) Under suchs limitations as the court may order under Sec. 16 and 18. (4) Whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE 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) WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED When done: At any time during the taking of the deposition How done: On motion or petition of any party or of the deponent, filed in the court in which the action is pending

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Civil Procedure

or the Regional Trial Court of the place where the deposition is being taken. Grounds: (1) Upon a showing that the examination is being conducted in bad faith or (2) In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party. 2.

Exception: Unless allowed by the court for good cause shown and to prevent failure of justice Objections Objections to it may be presented to the court within 10 days after service. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories until the objections are resolved

Interrogatories to parties (Rule 25)

WRITTEN INTERROGATORIES TO ADVERSE PARTIES Purpose This mode of discovery is availed of by a party to the action for the purpose of eliciting material and relevant facts from any of the adverse party (Sec. 1, Rule 25) Who can apply (1) Any party desiring to elicit material and relevant facts from any adverse party shall file and serve upon the latter written interrogatories to be answered by the party served. (2) If the person served is a private or public corporation, partnership or association, then it will be answered by any officer competent to testify in its behalf. Need for leave of court Leave of court for written interrogatories is NEEDED if the answer has not yet been served. If it has been served, leave of court is NOT needed. Note: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party Answers The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof. This period may, upon motion and for good cause shown, be extended or shortened by the court.

CONSEQUENCE OF REFUSAL TO ANSWER The court on motion and notice, may: (1) strike out all or any part of any pleading of that party (2) dismiss the action or proceeding or any part thereof (3) enter a judgment by default against that party, and in its discretion (4) order him to pay reasonable expenses incurred by the other, including attorney's fees. (Sec. 5, Rule 29) EFFECT OF FAILURE INTERROGATORIES

TO

SERVE

WRITTEN

General rule: A party not served with such may NOT be compelled by the adverse party (1) to give testimony in open court or (2) deposition pending appeal

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3.

Admission by adverse party (Rule 26)

REQUEST FOR ADMISSION Purpose (Sec. 1, Rule 26) (1) to allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely will not be disputed during the trial (2) to avoid inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: ü admit the genuineness of any material and relevant document described in and exhibited with the request; or ü admit the truth of any material and relevant matter of fact set forth in the request WHEN MADE At any time after issues have been joined HOW MADE (1) A party may file and serve upon any other party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. (2) Copies of the documents shall be delivered with the request unless copy have already been furnished. IMPLIED ADMISSION BY ADVERSE PARTY Each of the matter requested to be admitted shall be deemed admitted. UNLESS within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, party requested serves upon the party requesting a sworn statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION The proponent may apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. If the application is granted, the court: (a) shall require the refusing party or deponent to answer the question or interrogatory and

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(b)

if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees.

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. (Sec. 1, Rule 29) EFFECT OF ADMISISON Admission is only for the purpose of the pending action and shall NOT constitute an admission for any other person nor may it be used against him in any other proceeding. Withdrawal The court may allow the party making an admission under the Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. The admitting party must file a motion to be relieved of the effects of his admissions EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION General rule: A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon Exception: Unless otherwise allowed by the court for (1) Good cause shown, and (2) To prevent a failure of justice 4.

Production or inspection of documents or things (Rule 27)

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS FILING OF THE MOTION A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. Applicable only to a pending action and the things subject of the motion must be within the possession, control, or custody of a party. PURPOSE The Court may issue an order for the party to: 1. Produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things (a) not privileged (b) which constitute or contain evidence material to any matter involved in the action and (c) are in his possession, custody or control.

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(d)

Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.

The order SHALL STATE 1. The time, place and manner of making the inspection and taking copies AND 2. Such terms and conditions which are just. Production or inspection of things or documents and Subpoena Duces Tecum, distinguished Production or inspection of Subpoena Duces Tecum things or documents Essentially a mode of Means of compelling discovery production of evidence Rules are limited to the May be directed to a parties to the action person whether a party or not The order under this rule is May be issued upon an ex issued only upon motion parte application with notice to the adverse party

5.

Physical and mental persons (Rule 28)

examination

of

PHYSICAL AND MENTAL EXAMINATION OF PERSONS This mode of discovery applies to an action in which the mental or physical condition of a party is in controversy (Sec. 1, Rule 28). Examples of this action would be: (a) An action for annulment of a contract where the ground relied upon is insanity. (b) A petition for guardianship of a person alleged to be insane; (c) An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff (Riano) 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 all other parties (c) Specifying the time, plane, manner, conditions and scope of examination. WAIVER OF PRIVILEGE The party examined waives any privilege he may have in that action regarding the testimony of the person who has examined or may examine him with respect to that same mental or physical examination by: 1. Requesting and obtaining a report of the examination so ordered OR 2. Taking the deposition of the examiner Physician-patient privilege is inapplicable because the results of the examination are intended to be made public.

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(2) REPORT OF FINDINGS The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, 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 (Sec. 3, Rule 28). If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony if offered at the trial (Sec. 3, Rule 28). The Court exercises full discretion in regulating physical and mental examinations of a party to a controversy. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician. The Court must first determine whether a physical examination is necessary, then determine the physician who shall conduct the examination. 6.

Refusal to comply discovery (Rule 29)

with

modes

of

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY The court may upon proper application, compel a deponent who refuses to answer an oral examination/interrogatory submitted (Sec. 1, Rule 29). A refusal to answer after being directed by the court may be considered as a contempt of court (Sec. 2, Rule 29). (a) 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. (b) If the application for an order to compel a deponent to answer is denied, the court may require the proponent or the counsel advising the application, or both of them, to pay to the refusing party or deponent the amount of reasonable expenses incurred in opposing the application, including attorney’s fees (Sec. 1, Rule 29). REFUSAL TO BE SWORN A refusal of a party to be sworn after being directed by the court may be considered as contempt of court. (Sec. 2, Rule 29) REFUSAL TO OBEY ORDER If a party/officer or managing agent of a party refuses to obey an order requiring him: (1) To answer designated questions

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(3)

To produce a thing for inspection or to permit entry upon property To submit to a physical or mental examination

The court may order: (1) That the matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established. (2) The disallowance of the disobedient party’s claims (3) The prohibition of the disobedient party to present evidence (4) The striking out of the pleadings or parts thereof (5) The dismissal of the action or parts thereof (6) Rendering judgment by default against the disobedient party OR (7) The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS If a party refuses to attend or serve answers, the court may: (1) Strike out all or any part of any pleading of that party. (2) Dismiss the action or any part thereof. (3) Enter a judgment by default against that party, OR/AND (4) Order that party to pay reasonable expenses incurred, including attorney’s fees. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule.

O. Trial (Rule 30) Trial - judicial process of investigating and determining the legal controversies, starting with the production of evidence by the Plaintiff and ending with his closing arguments. General Rule: When an issue exists, trial is necessary. Decision should not be made without trial. Exceptions: (1) Judgment on the Pleading – where the pleadings tender no issue at all (2) Summary Judgment – where from the pleadings, affidavits, depositions, and other papers, there is actually no genuine issue (3) Judgment on Compromise (4) Judgment by Confession (5) Dismissal with Prejudice (6) Judgment under Rule on Summary Procedure (7) When the parties, in writing, agree upon the stipulation of facts ISSUES IN TRIAL Trial shall be limited to the issues stated in the pre-trial order unless subject to Section 2 Rule 31. Additional evidence may be offered at the rebuttal stage (subject to the discretion of the court) if: (1) it is newly discovered evidence

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(2) (3)

it is omitted through mistake or inadvertence (oversight) the purpose is to correct evidence previously offered

HEARING It is not confined to trial but embraces several stages of litigation including pre-trial stage. It does not necessarily mean presentation of evidence. Notice of Trial Upon entry of the case in the trial calendar, the clerk of court shall notify the parties of the date of trial in such manner as to ensure its receipt at least five (5) days before such date (Sec. 1, Rule 30).

ADJOURNMENT AND POSTPONEMENTS A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require. However, the court has no power to adjourn a trial for: (1) A period longer than 1 month for each adjournment OR (2) More than 3 months in all Exception: when authorized in writing by the court administrator REQUISITES OF MOTION TO POSTPONE TRIAL Postponements are to the sound discretion of the court and in the absence of grave abuse, it cannot be controlled by mandamus. It is not a matter of right. If the adverse party admits the facts to be given in evidence, the trial will not be postponed even if he objects or reserves the right to object to their admissibility. FOR ABSENCE OF EVIDENCE Requisites: (1) A motion for postponement stating the ground relied upon must be filed AND (2) The motion must be supported by an affidavit showing (a) The materiality and relevancy of such evidence, and (b) That due diligence has been used to procure it. FOR ILLNESS OF PARTY OR COUNSEL Requisites: (1) A motion for postponement stating the ground relied upon must be filed AND (2) The motion must be supported by an affidavit or sworn certification showing (a) The presence of such party or counsel at the trial is indispensable AND (b) That the character of his illness is such as to render his non-attendance excusable

AGREED STATEMENT OF FACTS The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for

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Civil Procedure

judgment on the facts agreed upon, without the introduction of evidence but if the parties agree only on some facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 6, Rule 30). Not permitted in Annulment of Marriage and for Legal Separation. ORDER OF TRIAL 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 pre-trial order and shall proceed as follows: (a) The plaintiff shall adduce evidence in support of his complaint; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and thirdparty complaint; (c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth- party complaint; (d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any other pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence The normal order of trial may be modified if the court, in furtherance of convenience and to avoid prejudice, orders a separate trial of any claim, cross-claim, counterclaim, or third-party complaint. It may also order, for the same reasons, a separate trial of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues (Sec. 2, Rule 31). REVERSAL OF ORDER The Defendant presents evidence ahead of the Plaintiff, when the Defendant in his answer, relies upon an affirmative defense. Ratio Plaintiff need not have to present evidence since judicial admissions do not require proof.

P. Consolidation or Severance (Rule 31) CONSOLIDATION

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Civil Procedure

This involves several actions having a common question of law or fact which may be jointly tried.

To relieve the judge of some of his judicial functions when it can be entrusted to a responsible officer.

SEVERANCE This contemplates a single action having a number of claims, counterclaims, cross-claims, third-party claims, or issues which may be separately tried.

General Rule: The judge must personally receive or resolve evidence of the parties.

Purpose (1) to avoid multiplicity of suits (2) to guard against oppression or abuse (3) to prevent delay (4) to clear congested dockets (5) to simplify the work of the Trial Court (6) to save unnecessary cost and expenses General Rule: Consolidation applies to cases pending before the same judge and not to cases pending in different branches of the same court or different courts. This also applies to special proceedings.

Exception: It may be delegated only if: (1) Delegation may only be made in default or ex parte hearings, or on agreements in writing by the parties. (2) Reception of evidence shall be made only by the clerk of court who is a member of the bar. (3) The Clerk shall have no paper to rule on objections to any question, admission of evidence, or exhibits (4) He shall submit his reports and transcripts of the proceedings together with the objections to be resolved by the court within 10 days from the termination of the hearing.

TRIAL BY COMMISSIONERS

Exception: Whenever appropriate, and in the interest of justice, consolidation in different branches of the same or different courts can be effected. (Bank of Commerce v. Hon. Perlas-Bernabe, G.R. No. 172393) 3 ways of consolidating cases: (1) Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasiconsolidation) (2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation) (3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial) (Republic v. Sandiganbayan, 662 SCRA 152)

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.

Cases can be consolidated for purposes of a single appeal, and 1 decision can be rendered.

REFERENCE ORDERED ON MOTION The court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein;

The Supreme Court can also order the consolidation of the case with the same parties or issues filed in different courts of equal jurisdiction. Courts may render separate judgements on each claim and must be with jurisdiction of the court.

The Commissioner may rule upon the admissibility of evidence, unless otherwise provided in the order of preference. General Rule: Trial by commissioner depends largely upon the discretion of the court. Exception: The following are instances when such appointments are mandatory: (1) Expropriation (2) Partition (3) Settlement of Estate of a Deceased Person in case of contested claims (4) Submission of accounting by executors or administrators An irregularity in the appointment of a commissioner must be seasonable raised in the Trial Court where the defect could still be remedied. It could be waived by consent of the parties, expressly or impliedly. REFERENCE BY CONSENT OR ODERED ON MOTION REFERENCE BY CONSENT The court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court by written consent of both parties,.

DELEGATION OF RECEPTION OF EVIDENCE

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(b) (c)

Civil Procedure

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. 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.

POWERS OF THE COMMISSIONER (1) Exercise power to regulate the proceedings before him. (2) Do all acts and take all measures necessary or proper for the efficient performance of his duties. (3) Swear witnesses (4) Issue subpoenas and subpoenas duces tecum (5) Unless otherwise provided in the order of reference. (6) Rule upon the admissibility of evidence. (7) Requirement of hearing cannot be dispensed with.

Failure of parties to appear before the commissioner If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter Delegation to Clerk of Court Clerk of court must be a lawyer

Trial by Commissioner Commissioner need not be a lawyer

Clerk of court cannot rule on objection or on the admissibility of evidence

Commissioner can rule on objections or on admissibility of evidence

Delegation during trial

Commissioner can be appointed even after the case has become final and executory

is

made

COMMISSIONER’S REPORT Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. NOTICE TO PARTY Upon the filing of the report, the parties shall be notified by the clerk. They shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if they so desire.

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Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein, set forth, shall not be considered by the court unless they were made before the commissioner. HEARING Upon the expiration of the period of ten (10) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court (Sec. 11, Rule 32)

Q. Demurrer to Evidence (Rule 33) GROUNDS 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. 5, Rule 30) WHEN TO AVAIL A demurrer to evidence is availed of by the defendant after the plaintiff has completed the presentation of his evidence (Sec 1, Rule 33, Rules of Court) DEMURRER TO EVIDENCE v. MOTION TO DISMISS Demurrer to evidence Motion to dismiss It is presented after the Presented before a plaintiff has rested its responsive pleading (answer) case is made by the defendant The ground is based on It may be used on any of insufficiency of evidence those enumerated in Rule 16 If motion is denied, If the motion is denied, defendant may present defendant may file his his evidence responsive pleading If the motion is granted, the If motion is granted, the complaint is dismissed and complaint is dismissed. depending on the ground, The remedy of the the complaint may be replaintiff is to appeal filed

EFFECT OF DENIAL If the demurrer is denied, the defendant shall have the right to present his evidence. This means that the denial of the demurrer to evidence does not deprive the defendant of the opportunity to adduce evidence in his behalf. 
 Where a Court denies a demurrer to evidence, it should set the date for the reception of the defendant’s evidence in chief. It should not proceed to grant the relief demanded by the plaintiff (Northwest Airlines, Inc vs. Court of Appeals) An order denying a demurrer to the evidence is interlocutory and is, therefore, not appealable. It can, however, be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. (Katigbak vs. Sandiganbayan) 


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Civil Procedure

Note: The provisions of the Rules of Court governing demurrer to evidence does not apply to an election case (Gementiza vs. COMELEC) EFFECT OF GRANT If granted, the case shall be dismissed. WAIVER OF RIGHT TO PRESENT EVIDENCE If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (Sec. 5, Rule 30) DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE Civil Cases Defendant need not ask for leave of court

If the court finds plaintiff’s evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dimsissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintff’s evidence with the consequence that the defendant already loses his right to present evidence; no res judicata in dismissal due to demurrer. The court denies demurrer; defendant will present his evidence.

Criminal Cases May be filed with or without leave of court. Leave of court is necessary so that the accused could present his evidence if the demurrer is denied. If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting accused. Judgment of acquittal is not appealable; double jeopardy sets in.

GROUNDS This is upon motion of the Plaintiff, and no introduction of evidence is needed. But, may also be filed by the defendant on his counter claim where the answer to his counterclaim: (1) fails to tender the issue (2) admits the material allegation of the Plaintiff An answer failed to tender an issue when the material allegations of the other party are admitted or not specifically denied by the pleader. Under the rules, material allegations of the complain not specifically denied are deemed admitted (Rule 11, Sec. 8) General rule: Judgment on the Pleadings can be done only upon motion to that effect filed by the Claimant. It cannot be rendered by the court motu proprio. Exception: If at pre-trial the court finds that a judgment on the pleading is proper, it may render such judgment motu proprio (Sec. 2(g), Rule 18) Effects (1) Plaintiff/ Claimant Plaintiff, by moving for judgement on pleadings, is not deemed to have admitted irrelevant allegation in Defendant's answer. Plaintiff waives his claim for unliquidated damages One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence, must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings.

If the court denies the demurrer: (1) if demurrer was with leave, accused may present evidence (2) If demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence

R. Judgments and Final Orders 1.

Note: It will not apply when no answer is filed.

Judgment on the Pleadings (Rule 34)

JUDGMENT ON THE PLEADINGS A judgment rendered by the court if the answer fails to tender an issue or otherwise admits the material allegation of the adverse party’s pleading. (Sec. 1, Rule 34)

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(2) Defendant Defendant is not deemed to have admitted allegations of damages in the complaint so no award of damages without any proof. When Judgment on the Pleadings not applicable Material facts alleged in the complaint must always be proved in (1) Declaration of nullity of marriage (2) Annulment of marriage (3) Legal separation (Sec. 1, Rule 34) Note: When no answer is filed, the remedy is to move the defendant to be declared in default. In case of insufficiency of facts, the proper remedy is amendment. 2.

Summary judgments (Rule 35)

SUMMARY JUDGMENTS Also called “accelerated judgment”

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Civil Procedure

One, which is rendered by the court on motion of a party, either of the plaintiff or the defendant where there is actually no genuine issue between the parties (Riano) When proper Summary Judgment is proper only when there is clearly no genuine issue as to any material fact in the action. If there is any question or controversy upon and question of fact, there should be a trial on the merits. Genuine Issue An issue of fact which call for the presentation of evidence. It is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. Proper only in an action (1) for a liquidated sum of money (2) to collect a debt (3) for declaratory relief Before the Defendant has answered or moved for summary judgment, Plaintiff may, as a matter of right and without order of court, File a Notice of Dismissal at any time before such answer or motion, without prejudice or without prejudice where: (1) the notice states so, (2) two-dismissal rule, i.e., Plaintiff had previously dismissed the same case in a court of Competent jurisdiction (3) even if the notice does not so provide it is premised on fact of payment by the defendant of the claim involved.

Who may file the motion Claimant Defendant

When Any time after the pleading in answer thereto has been served. (Sec. 1, Rule 35) Anytime. (Sec. 2, Rule 35)

WHEN THE CASE NOT FULLY ADJUDICATED The court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly.(Sec. 4, Rule 35) Bases of Summary Judgment (1) Affidavits made on personal knowledge (2) Depositions of the adverse party or a third-party under Rule 233. (3) Admissions of the adverse party under Rule26. (4) Answers to interrogatories under Rule 25; all intended to show that:

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(a) (b)

There is no genuine issue as to any material fact, except damages which must always be proved; and The movant is entitled to a judgment as matter of law.

AFFIDAVITS AND ATTACHMENTS Form of affidavits and supporting papers (1) Made on personal knowledge (2) Shall set forth such facts as would be admissible in evidence (3) Shall show affirmatively that the affiant is competent to testify to the matters stated therein Attachments Certified true copies of all papers or parts thereof referred to in the affidavit shall be atacked thereon or served therewith. Affidavits in bad faith Affidavits presented under this rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay. Effects of presenting affidavits in bad faith (1) Court shall order the offending party or counsel to pay the other party - amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees (2) Court may adjudge the offending party or counsel guilty of contempt, after hearing

JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS Judgment on Pleadings Summary Judgment Proper when it appears Proper even when there is an that there is no issue issue as to damages between the parties. recoverable Based exclusively upon the pleadings without introduction of evidence.

Based not only on the pleadings but also on affidavits, depositions, and admissions of parties showing that, except as to the amount of damages, there is no genuine issue.

Available in any action except annulment of marriage or legal separation where it must always be proved. Subject only to the 3 day notice rule and where all the material averments of the complaint are admitted, motion may be made ex parte. Generally available only to the plaintiff, unless the defendant presents a counterclaim Judgment on the merits

Only in actions to recover a debt, or for liquidated sum of money, or for declaratory relief. Requires prior 10-day notice rule.

Available to both plaintiff and defendant

May be interlocutory or on the merits

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3.

Rendition and entry of judgments and final orders (Rule 36)

Civil Procedure

(1) (2) (3)

Motion for New trial Motion for reconsideration Appeal

Filing of the signed decision with the clerk of court and not pronouncement in open court is that which constitutes rendition of judgment. (Riano) If decision is sent by the judge by registered mail, it is considered filed in court as of the date of its receipt by the clerk and not the date of its posting or mailing. Memorandum decisions may adopt by reference the findings of fact and conditions of law contained in the Trial Court decision. General Rule: Validity of Judgment or order of a court cannot be collaterally attacked. Exception: If attacked on the ground of: (a) lack of jurisdiction (b) irregularity of its entry apparent from the face of the record Where judgment is ambiguous and difficult to comply with, the remedy is to file a motion for clarificatory relief. The Court may correct the clerical error even after finality. ENTRY OF JUDGMENT AND FINAL ORDER Entry - 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. The clerk of court: (1) Keeps a judgment book containing a copy of each judgment of court in the order of their dates. (2) Keeps a book of entries of judgment containing at length in chronological order entries of all final judgment or orders of the court. The record shall: (1) Contain the dispositive portion of the judgment or final order (2) Signed by the clerk of court (3) With a certificate by said clerk that the judgment has already become final and executory Rule on Immutability of Judgment General Rule: Final judgments are unalterable even if the modification is meant to correct erroneous conclusions of fact and law and even if made by the highest court. Exception: (1) Correction of clerical errors (2) Nunc Pro Tunc entries which cause prejudice to any party (3) Void judgments (4) Whenever circumstances transpire after finality making the execution unjust and inequitable. Remedies against judgments or final orders Before finality After Finality

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(a) (b) (c)

Relief from judgment or final order Annulment of judgment Petitioner for certiorari

S. Post-Judgment Remedies 1.

Motion for new trial or reconsideration a. Rule 37

GROUNDS FOR MOTION FOR NEW TRIAL OR RECONSIDERATION [F-A-M-E] FRAUD Must be extrinsic fraud. Extrinsic farud connotes any fraudulent scheme executed by the prevailing party outside the trial against the missing party who because of such fraud is prevented from presenting his side of the case. ACCIDENT An event that takes place without one’s foresight or expectation MISTAKE Generally refers to mistakes of fact or law where, in good faith, the defendant was mislead in the case. EXCUSABLE NEGLIGENCE The failure to take the proper steps at the proper time at the proper time, not in consequence of party’s own carelessness, inattention, or willful disregard of the process of the unavoidable hidrance or accident, or on reliance on the care and vigilance of his counsel or on promises made by the adverse party. Note: The negligence must be excusable and generally imputable to the party because if it is imputable to the counsel, it is binding ton the client. General Rule: Mistakes of counsel as to the competency of witnesses, the sufficiency and relevancy of evidence, the proper defense, or the burden of proof, his failure to introduce certain evidence, or to summon witnesses and to argue the case, are not proper grounds for a new trial. Exception: HOWEVER, if the incompetence of counsel be so great that his client is prejudiced and prevented from fairly presenting his case, motion for new trial may be allowed. REQUISITES OF NEWLY DISCOVERED EVIDENCE 1. That such evidence has been discovered after trial; 2. That it could have not been discovered or produced at the trial even with the exercise of reasonable diligence; 3. That it is material and not merely collateral, or cumulative, or corroborative or merely impeaching a witness; 4. If presented, it would probably alter the result. PARTIAL NEW TRIAL

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If the Court finds that the motion affects the issues of the case as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. SECOND MR and NT IN MOTION FOR RECONSIDERATION General rule: There is “single motion rule” where a party is not allowed to file a second motion for reconsideration of a judgment or final order. Exception: HOWEVER, if the motion for reconsideration is directed to an interlocutory order, a second motion for reconsideration is allowed. In Motion for New Trial, a second motion is allowed including all grounds available otherwise deemed waived. It may be filed within the period allowed but excluding the period by which the first motion was pending.

No appeal may be taken from: (1) An order denying a motion for new trial or reconsideration; (2) An order denying a petition for relief or any similar motion seeking relief from judgment; (3) An interlocutory order; (4) An order disallowing or dismissing an appeal; (5) 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; (6) An order of execution; (7) 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 (8) An order dismissing an action without prejudice. (Sec. 1, Rule 41)

Remedy against denial and freshperiod rule

REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE

Can MR and NT be appealed? Denial of motion for new trial and reconsideration are not appealable. Neither can these be subject for Certiorari under Rule 65.

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.(Sec. 1, Rule 41)

b.

FRESH PERIOD RULE Based on the foregoing, an appeal should be taken within 15 days from the notice of judgment or final order appealed from. To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. (Neypes vs. Court of Appeals, 2005) 2.

Appeals a. Judgments and final orders subject to appeal

JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL Interlocutory orders vs. Judgment or Final Orders Interlocutory Orders refer to something between the commencement and the end of the suit which decides some point or matter, but it is not a final decision of the whole controversy.

b.

Final Judgment or Order one that finally disposes of, adjudicates or determines the rights, or some rights of the parties, either on the entire controversy or some definite and separate branch thereof, and which concludes them until it is reversed or set aside.

Matters not remedies

appealable;

available

c.

Doctrine of finality/immutability of judgment

FINAL JUDGMENT RULE; EXCEPTIONS An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. (Sec. 1, Rule 41) The aggrieved party may file an appropriate special civil action under Rule 65. (Sec. 1, Rule 41) DOCTRINE OF FINALITY OF JUDGMENT or IMMUTABILITY OF JUDGMENT A decision that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification in any respect, even if the modification is meant to correct erroneous of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land. Any act which violates this principle must immediately be struck down. (Gadrinab v. Salamanca, 2014) EXCEPTIONS (1) The coorection of clerical errors; (2) Pro-tunc entries which cause no prejudice to any party; (3) Void judgments (4) Whenever circumstances transpire after finality of the decision rendering its execution unjust and inequitable (FGU Insurance Corporation v. RTC Makati, 2011)

MATTERS NOT APPEALABLE

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d.

Civil Procedure

Modes of appeal from judgments or final orders of various courts (Rules 40, 41, 42, 43, and 45)

the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order.

MODES OF APPEAL Ordinary appeal Rule

Court Filed

Issues Raised

40; 41 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 that 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 Rules so require. In such cases, the record on appeal shall be filed and served in like manner. questions of fact or both questions of fact and law

Petition for Review 42; 43

Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order.

Ordinary Appeal under Rule 41

However, an appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from.

The appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction

questions of fact, law, or both questions of fact and law

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

purely questions of law

Issues to be raised on appeal Issues to be raised on Appeal Questions of fact or mixed Ordinary Appeal questions of fact and law Questions of fact, of law or mixed Petition for Review questions of fact and law. Petition for Review purely questions of law on Certiorari

PERIOD OF APPEAL Period of Appeal Ordinary Appeal under Rule 40

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

Petition for Review on Certiorari 45

Petition for Review under Rule 42

Within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner‘s motion for new trial or reconsideration filed in due time after judgment

Petition for Review under Rule 43

Within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication or of the denial of petitioner‘s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo.

Petition for Review on Certiorari under Rule 45

Within 15 days from notice of the judgment, final order or resolution appealed from, or within 15 days from notice of the denial of the petitioner‘s motion for new trial or motion for reconsideration filed in due time

PERFECTION OF APPEAL Perfection of Appeal (a) By notice of appeal - upon the filing of the notice of appeal in due time; (b) By record on appeal - upon the approval of the record on appeal filed in due time; For Ordinary Appeals from MTC to the RTC and from the RTC to the CA.

Within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required,

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Perfection

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2, Rule 39, and allow withdrawal of the appeal.

of

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Appeal by Petition for Review under Rule 42.

Civil Procedure

Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees

PARTICIPATION OF THE SOLICITOR GENERAL DURING APPEAL The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Where: May be taken to the RTC exercising jurisdiction over the area to which the former pertains. Note: Where the MTC dismisses a case for lack of jurisdiction and such dismissal is appealed to the RTC, should the latter affirm the dismissal and if it has jurisdiction over the subject matter, the RTC is obliged to try the case as if it were originally filed with it. How: The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. Note: A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals. CONTENTS OF NOTICE OF APPEAL The following shall be specified: (1) Parties to the appeal; (2) Judgment or final order or part thereof appealed from; (3) The court to which the appeal is being taken; and (4) The material dates showing the timeliness of the appeal. (Sec. 5, Rule 41) CONTENTS OF RECOND ON APPEAL (1) Full names of all the parties to the proceedings shall be stated in the caption of the record; (2) Specify the judgment or final order from which the appeal is taken; (3) In chronological order, include copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order. (4) Data that will show that the appeal was perfected on time. (5) 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.

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(6)

Every record on appeal exceeding twenty (20) pages must contain a subject index. (Sec. 6, Rule 41)

DIFFERENCE OF NOTICE OF APPEAL AND RECORD ON APPEAL Distinction between Notice of Appeal Record on Appeal Upon the approval of Appeal is Upon the filing of the record on appeal deemed the notice of appeal filed in due time with in due time respect to the subject perfected matter thereof. The Court loses The Court loses jurisdiction only over jurisdiction over the subject matter the case upon the thereof upon Effect of a perfection of the approval of the appeal filed in due perfected records on appeal time and the appeal filed in due time and expiration of the the expiration of the time to appeal of time to appeal of the the other parties. other parties. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC How: (1) Ordinary Appeal from the judgment or final order of the RTC in the exerciseof its original jurisdiction. (Rule 41) (2) Petition for Review from the judgment or final order of the RTC to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction (Rule 42) (3) Petition for Review on Certiorari. (Rule 45) e.

Review of judgments or final orders of the COA, COMELEC, CSC, and the Ombudsman

REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE COA Where: May be brought to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice. REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE COMELEC Where: May be brought to the SC on certiorari under Rule 45 by filing the petition within 30 days from notice. Rule 64 covers review of judgments and final orders or resolutions of the COMELEC and COA but the mode of review is done following the rules on certiorari under Rule 65. Rule 65 provides for the remedy when a tribunal, board or officer exercising judicial, quasi-judicial functions has acted without or in excess of its jurisdiction and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. ü Rule 64- 30 days from notice of the judgment, order or resolution. ü Rule 65- 60 days from notice of the judgment, order or resolution.

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(n) REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE CSC Where: May be taken to the CA under Rule 43. REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN Where: In administrative disciplinary actions, the appeal should be brought to the CA under Rule 43. But in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with the SC to set aside the Ombudsman’s order or resolution. In criminal or non-administrative case, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. The SC‘s power to review over resolutions and orders of the Office of the Ombudsman is restricted on to determining whether grave abuse of discretion has been committed by it. Note: The Court is not authorized to correct every error or mistake of the Office of the Ombudsman other than grave abuse of discretion. f.

Review of judgments or final orders of quasi-judicial agencies

REVIEW OF JUDGMENTS OR FINAL ORDERS OF QUASI-JUDICIAL AGENCIES Where: Required to be brought to the CA under the requirements and conditions set forth in Rule 43. Note: May be taken to the CA whether the appeal involves a question of fact, a question of law, or mixed questions of fact and law. HOW TO APPEAL Through a verified petition, appeal shall be taken with the Court of Appeals on the judgments or final orders of the following: (a) Court of Tax Appeal and quasi-judicial agencies in exercise of their quasi-judicial functions: (b) Civil Service Commission (c) Central Board of Assessment Appeals (d) Securities and Exchange Commission (e) Office of the President, Land Registration Authority (f) Social Security Commission (g) Civil Aeronautics Board, (h) Bureau of Patents, Trademarks and Technology Transfer, (i) National Electrification Administration, (j) Energy Regulatory Board, (k) National Telecommunications Commission, (l) Department of Agrarian Reform under Republic Act No. 6657, (m) Government Service Insurance System,

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Employees Compensation Commission, Agricultural Invention Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Sec. 1, Rule 43)

Excluding: judgments or final order issued under the Labor Code of the Philippines such as the NLRC. In such cases, Rule 65 or petition for certiorari shall be the remedy to elevate the case to the CA. (Sec. 2, Rule 43) (St. Martin Case, Doctrine of judicial hierarchy) g.

Dismissal, reinstatement, withdrawal of appeal

and

An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (Sec. 1, Rule 50) (1) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (2) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (3) Failure of the appellant to pay the docket and other lawful fees as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. 803, 17 February 1998) (4) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (5) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (6) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (7) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (8) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (9) The fact that the order or judgment appealed from is not appealable WHEN TO WITHDRAW An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (Sec. 3, Rule 50) DUAL FUNCTION OF APPELLATE COURTS 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. (A.M. No. CA13-51-J)

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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) 3.

Petition for relief from judgment (Rule 38)

GROUNDS FOR AVAILING OF THE REMEDY (1) 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) (2) When the petitioner has been prevented from taking an appeal by FAME (Sec. 2, Rule 38) TIME TO FILE ACTION Within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside; and Not more than six (6) months after such judgment or final order was entered, or such proceeding was taken. (Sec. 3, Rule 38) CONTENTS OF PETITION (1) The petition must be verified; (2) Affidavits, showing the FAME relied upon; and (3) Affidavits showing the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be. (Sec. 3, Rule 38) 4.

Annulments of judgment (Rule 47)

ANNULMENTS OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS Definition: An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. Purpose: The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. Annulment of judgment is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of petitioner, and is based on only two grounds, extrinsic fraud and lack of jurisdiction. (Alaban v. Court of Appeals, 470 SCRA 697) Annulment of judgment does not apply to judgments rendered by quasi-judicial bodies. It does not also apply to decisions or orders of the Ombudsman in administrative cases whose decisions or orders may be appealed to the Court of Appeals under Rule 43. (Macalalag v. Ombudsman, 2004)

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Civil Procedure

Note: A person need not be a party to the judgment sought to be annulled, and it is only essential that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby. GROUNDS FOR ANNULMENT Note: Grounds are exclusive. (1) Extrinsic Fraud Extrinsic fraud exists when there is a fraudelent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by deception practiced on him by the prevailing party. It is also known as Collateral Fraud. Note: Extrinsic fraud must be employed against it by the adverse party, who because of some trick, artifice, or device naturally prevails in the suit. It does not include fraud practiced by its own witness, in making false testimony. (2) Lack of Jurisdiction Lack of jurisdiction refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. It means absence of or no jurisdiction, that is, the court should not have taken cognizance of the petition because the law does not vest it with jurisdiction over the subject matter. Note: Petitioner must show not merely an abuse of jurisdictional discretion but an absolute lack of jurisdiction. (3)

Lack of Due Process

PERIOD TO FILE ACTION Extrinsic fraud - the action must be filed within four (4) years from its discovery. (Sec. 3, Rule 47) Lack of jurisdiction – the action must be brought before the action is barred by laches or estoppel. (Sec. 3, Rule 47) EFFECTS OF JUDGMENT OF ANNULMENT Extrinsic fraud – The court, upon motion, may order the trial court to try the case as if a motion for new trial was granted. (Sec. 7, Rule 47) As a general rule, the prescriptive period is deemed suspended. 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) Lack of jurisdiction – It shall have the effect of setting aside the questioned judgment or final order rendering the same null and void but the judgment of annulment is without prejudice to the the refiling of the original action in the proper court. (Sec. 7, Rule 47)

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The prescriptive action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. (Sec. 8, Rule 47)

5.

Collateral attack on judgments

COLLATERAL ATTACK ON JUDGMENTS When, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void. Direct against a judgment is made through an action or proceeding the main object of which is to annul, set aside, or enjoin the enforcement of such judgment, if not yet carried into effect; or, if the property has been disposed of, the aggrieved party may sue for recovery.

Collateral made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction. [Co vs. Court of Appeals, 196 SCRA 705(1991)]

T. Execution, Satisfaction, and Effect of Judgments (Rule 39) MODES OF EXECUTION OF JUDGMENT There are two modes of executing final and executory judgment: • Execution by a motion if the enforcement of the judgment is sought within 5 years from the date of entry • Execution by independent action if the 5-year period has elapsed and before it is barred by statute of limitations. JUDGEMENTS NOT STAYED BY APPEAL (a) Judgments as of now declared to be immediately executory, shall be enforceable after their rendition, and shall not be stayed unless otherwise ordered by the trial court. • Judgments for Injunction • Judgments for Receivership • Judgments for Accounting • Judgments for Support (b) Judgments that may thereafter be declared to be immediately executory. GROUNDS FOR QUASHING A WRIT OF EXECUTION: (1) Writ of execution varies the judgment (2) Change in the situation of the parties making execution inequitable or unjust (3) Execution is sought to be enforced against property exempt from execution (4) It appears that the controversy has never been submitted to the judgment of the court (5) Terms of the judgment are not clear enough and there remains room for interpretation thereof (6) When it is improvidently issued

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WHEN EXECUTION SHALL ISSUE EXECUTION AS A MATTER OF RIGHT Also known as Ministerial Execution (a) On motion; (b) Upon judgment or order that disposes of the action or proceeding (c) Upon expiration of the period to appeal therefrom and no appeal has been duly perfected; (d) When appeal has been duly perfected and resolved, by filing a motion with the court of origin submitting true copies of the final judgment or final order sought to be enforced. Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes a ministerial duty of the court . Judgment and orders become final and executory by operation of law and not by judicial declaration. Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period. DISCRETIONARY EXECUTION The concept of discretionary execution constitutes an exception to the general rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. REQUISITES: (1) Motion filed by a prevailing party with notice to adverse party (2) Hearing of the motion for discretionary execution (3) Good reasons to justify the discretionary execution (4) Reasons must be stated in the special order A DISCRETIONARY EXECUTION LIKE AN EXECUTION PENDING APPEAL A discretionary execution like an execution pending appeal must be strictly construed because it is an exception to the general rule. Good reasons as justification for the discretionary execution is essential. Examples: (1) Insolvency of judgment debtor (2) Good subject of the judgment will perish (3) Frivolous appeal Mere posting of bond for discretionary execution is NOT sufficient. HOW A JUDGMENT IS EXECUTED Through a writ of execution, which is a court order directing a sheriff or other officer to enforce a judgment, usually by seizing and selling the judgment debtor’s property.

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EXECUTION ACTION

BY

Civil Procedure

MOTION

OR

BY

INDEPENDENT

There is a need to file a motion for the issuance of a writ of execution. Under SC Circular No. 24-94, a motion for the issuance of a writ of execution must contain a notice to the adverse party. ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION The writ of execution is issued in the name of the Republic of the Philippines and must contain: (1) Name of the court that granted the motion (2) Case number (3) Dispositive portion of the judgment or order subject of the execution (4) Require the sheriff or other proper officer to whom it is directed to enforce the writ according to the terms The writ of execution should conform to the dispositive portion of the decision to be executed and the execution is void if it is in excess of and beyond the original judgment. EXECUTION OF JUDGMENTS FOR MONEY In executing a judgment for money, the sheriff shall: (1) Demand from the judgment obligor the immediate payment of the full amount (2) If obligor cannot pay, the officer shall levy upon the properties of the obligor Levy by the sheriff may be done only if the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other modes acceptable to the prevailing party. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS (Sec. 11, Rule 39) (a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. (10a) (b) Sale of real or personal property. — If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (8[c] (c) Delivery or restitution of real property. — The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and

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restore possession thereof to the judgment obligee, otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (13a) (d) Removal of improvements on property subject of execution. — When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. (14a) Delivery of personal property. — In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. (8a) EXECUTION OF SPECIAL JUDGMENTS When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. (Sec. 11, Rule 39) Special Judgment One which requires the performance of any act, other than the payment of money or delivery of real or personal property which a party must personally do because his personal qualifications and circumstances have been taken into consideration. (Regalado) 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) NECESSITY OF LEVY It is an essential act by which the property is set apart for the satisfaction of the judgment and taken into coustory of law, and that, after it has been taken from the defendant, his interest is limited to its application to the judgment, irrespective of the time when it may be sold. EXECUTION IF THE JUDGMENT OBLIGEE/OBLIGOR DIES EFFECT OF DEATH TO EXECUTION Execution will issue in any case. Death of obligee Upon application of his executor, administrator, or successor-in-

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Death of obligor

Civil Procedure

interest Death before levy: (a) Action for recovery of real or personal property or any lien – execution will issue (b) Action for a sum of money – execution will not issue. In this case, the judgment obligee should file claim against the estate of the judgment obligor under rule 86

h.

i.

Death after levy: execution will issue since the property is already separated from the estate of the deceased and is deemd in cusodia legis Against his executor, administrator, or successor-ininterest Where the application is made (a) Execution shall be applied for in the court of origin. (b) If an appeal has been duly perfected and finally resolved, the execution may be applied for also in the court of origin on the motion of the judgment obligee. (c) There is no need to wait for the records of the case to be remanded to the court of origin. (d) All that is required is for the appeal to have been duly perfected and finally resolved before the execution may be applied for. PROPERTIES EXEMPT FROM EXECUTION 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 housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; 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

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j. k. l.

m.

exceeding three hundred thousand pesos in value; One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; 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; Lettered gravestones; Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; Properties specially exempted by law.

But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (Sec. 13, Rule 39) Note: The list is not exclusive. There are other properties exempt form execution outside the Rules of Court. PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS A person claiming a property levied upon may execute an affidavit of his title or right of possession over the property. Such affidavit must state the grounds of such right or title. IN RELATION TO THIRD-PARTY ATTACHMENT AND REPLEVIN

CLAIM

IN

Certain remedies available to a third person not party to the action but whose property is the subject of execution: 1.

2.

Terceria – By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. The sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed. Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy

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3.

4.

Civil Procedure

and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching v. CA, 2004). For the conjugal partnership to be liable for a liability that should appertain to the husband alone, there must be a showing that some advantages accrued to the spouses (Ibid.). Intervention– This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19). Accion Reivindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

RULES ON REDEMPTION The real property sold may be redeemed from the purchaser, at any time within 1 year from the date of the registration of the certificate of sale. If there are other creditors having lien on the property so redeemed may again be redeemed within 60 days from the last redemption (Sec.28, Rule 39, ROC). If no redemption is made within 1 year from the date of registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property. EXAMINATION OF JUDGMENT JUDGMENT IS UNSATISFIED

OBLIGOR

WHEN

Effects when the judgment was returned unsatisfied: 1. The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 36, Rule 39); 2. The judgment creditor may cause examination of the debtors of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Sec. 37, Rule 39); 3. If the court finds, after examination, that there is property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment (Sec. 37, Rule 39); 4. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs, it may order payment in fixed monthly installments (Sec. 40, Rule 39); 5. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Sec. 41, Rule 39); 6. If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without

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7.

controversy, the court may order the sale of such interest (Sec. 42, Rule 39); and If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property, or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt (Sec. 43, Rule 39).

LIMITATIONS ON EXAMINATION 1. Judgment debtor cannot be made to appear before a judge or commissioner outside the province where the debtor resides. 2. A judgment debtor may no longer be examined after the lapse of five years within which a judgment may be enforced by motion for execution. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR Requisites 1. Writ must be returned unsatisfied; and 2. Proof that person, corporation or other legal entity has property of such judgment debtor or indebted to him. Effect Service of order binds all credits due to judgment debtor and all money and property. Note: This rule is not applicable where there is no issue concerning the indebtedness and there is no denial of the existence of the deposit with the bank which is considered a credit in favor of the depositor bank. EFFECT OF JUDGMENTS OR FINAL ORDERS The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: 1. In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration or the condition, status or relationship of the person, however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; 2. 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 the parties and 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; and 3. In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was

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actually and necessarily included therein or necessary thereto. (Sec. 47, Rule 39) ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS Effect of Foreign Judgment 1. In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing, and 2. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title. Enforcement of a foreign judgment The foreign tribunal must have jurisdiction to render the judgment or final order. Ways of enforcing a foreign judgment 1. An action may be filed in court 2. It may be pleaded in an answer or a motion to dismiss Note: A foreign judgment may be barred from recognition if it runs counter to public policy.

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Provisional Remedies

A. Nature, Purpose and Jurisdiction over Provisional Remedies It is an inherent power of the court concomitant to its very existence to issue provisional remedies, like injunction, to protect the rights and interest of parties pending litigation. (Far East Bank and Trust Company vs. Shemberg) Provisional remedies 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 they presuppose the existence of a principal action. (Buyco v. Baraquia, 2009)

PROVISIONAL REMEDIES

PURPOSE OF PROVISIONAL REMEDIES: (1) To preserve or protect their rights or interests while the main action is pending; (2) To secure the judgment; (3) To preserve the status quo; or (4) To preserve the subject matter of the action KINDS OF PROVISIONAL REMEDIES: (1) Preliminary attachment (Rule 57); (2) Preliminary injunction (Rule 58); (3) Receivership (Rule 59); (4) Replevin (Rule 60); and (5) Support pendente lite (Rule 61). The enumeration is not exclusive. For example, in the special proceeding of custody of minors, the court may grant a parent visitation rights and or temporary custody of the child. (Tan v. Adre, 450 SCRA 145) OTHER PROVISIONAL REMEDIES Issued by a family court (6) Temporary Custody of Minor Children (7) Order allowing Visitation Rights of Parents Provisional remedies in a petition for a writ of amparo (8) Temporary Protection Order (9) Witness Protection Order (10) Inspection Order (11) Production Order JURISDICTION OVER PROVISIONAL REMEDIES The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction.

B. Preliminary Attachment (Rule 57) Preliminary Attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case. (Davao Light and Power, Inc. v. CA, 204 SCRA 343)

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PROVISIONAL REMEDIES

Since attachment is harsh, extraordinary, and summary in nature, the rules on the application of a writ of attachment must be strictly construed in favor of the defendant. (Watercraft v. Wolfe) TWO-FOLD Purpose (1) To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying said judgment (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. (PCIB v. Alejandro, 533 SCRA 738) GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT (1) Recovery of specified amount of money and damages except moral or exemplary (a) on a cause of action arising from law contract, quasi-contract, delict or quasi-delict (b) where party is about to depart from the Philippines with intent to defraud creditors; (2) Actions for money or property embezzled or fraudulently misapplied or converted to his own use by: (a) a public officer (b) an officer of a corporation, (c) an attorney, factor, broker, agent, or clerk, in the course of his employment as such (d) by any other person in a fiduciary capacity, or for a willful violation of duty; (3) Action to recover of possession of property (both real and personal) unjustly taken, detained or converted, when the property, or any part thereof, is concealed or disposed of to prevent its being found or taken; (4) Actions against a party guilty of fraud in contracting the debt (dolo causante) or incurring the obligation or in the performance thereof (dolo incidente); (5) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (6) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. Note: The grounds are exclusive. REQUISITES (1) The case must be any of those where preliminary attachment is proper (Sec. 1, Rule 57); (2) The applicant must file a motion, whether ex parte or with notice and hearing; (3) The applicant must show by affidavit that: (a) A sufficient cause of action exists; (b) The case is one of those mentioned in Sec. 1, (c) There is no other sufficient security for the claim sought to be enforced by action; and (d) The amount due to applicant or possession of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims (4) The applicant must post a bond executed to the

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(5)

adverse party. (a) Amount is fixed by the court in its order granting the issuance of the writ (b) Conditioned that, if the court shall finally adjudge that applicant was not entitled to the writ, the bond will pay: ü All costs which may be adjudged to adverse party and ü All damages which he may sustain by reason of attachment Being provisional in character, attachment depends for its existence and effectivity upon the pendency of a principal action in court

Attachment places the property under the custody of the court (in custodia legis). It is in the nature of proceeding quasi in rem although sometimes referred to as an action in rem (Banco-Español Filipino vs. Palanca 37 Phil. 921) Whether in rem or quasi in rem, the legal effects are identical because in both cases, jurisdiction over the person of the defendant is not required as long as the court acquires jurisdiction over the res. (Valdemieso vs. Damalerio, 451 SCRA 638) It does not affect the decision on the merits; the right to recover judgment on the alleged indebtedness and the right to attach the property of the debtor are entirely separate and distinct, and the judgment in the main action neither changes the nature nor determines the validity of the attachment. TYPES OF ATTACHMENT (a) Preliminary Attachment Issued at the commencement of the action or at anytime 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. (b)

Garnishment Kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called the garnishee, to his claim or the money which said third person owes the defendant.

(c)

Levy on Execution The writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment.

ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the

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property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. 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: (a) that a sufficient cause of action exists (b) that the case is one of the grounds enumerated (c) that there is no other sufficient security for the claim sought to be enforced by the action, and (d) that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS General Rule: Enforcement of the writ or preliminary attachment must be preceded or contemporaneously accompanied by the service of summons, copy of the complaint, application and affidavit of the attachment and the bond in favor of the adverse party. Otherwise, the implementation is null and void. Exceptions to Contemporaneous Service of Summons: (a) Where the summons could not be served personally or by substituted service despite diligent efforts; (b) The defendant is a resident of the Philippines who is temporarirly out of the country; (c) The defendant is a non-resident; or (d) The action is one in rem or quasi in rem (Sec. 5, Rule 57) CLASSES OF ATTACHMENT Preliminary Attachment (Rule Final Attachment (Rule 57) 39) It is an auxiliary remedy to It is a means for the give security for a judgment execution of a final still to be rendered. judgment There is no sale because a It should always be decision has not yet been accompanied by a sale rendered. at public auction. Resorted to at the Available after the commencement of the action judgment in the main or at any time before entry of action had become judgment, for the temporary executory, and for the seizure of property of the satisfaction of said adverse party judgment. The proceeds of the sale are in The proceeds of the sale are turned over to custodia legis the attaching creditor Intervention is a remedy to a Intervention is NOT stranger whose property has available as a remedy been attached because there is an assumption of final judgment in Rule 39

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PROVISIONAL REMEDIES

MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSONS Levy shall not be made unless preceded or contemporaneously accompanied by: (a) Service of summons, except in instances when contemporaneous service is not required; (b) Copy of the complaint (c) Application for attachment (d) Affidavit and bond of the applicant; and (e) Order and writ of attachment. ATTACHMENT OF SPECIFIC KINDS OF PROPERTY (Sec. 7, Rule 57) (1) Real property, or growing crops thereon, or any interest therein (a) By filing with the registry of deeds: (i) copy of the order, together with a description of the property attached, and (ii) a notice that the property is attached. (b) 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. (c) 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. (2) Personal property capable of manual delivery ü Sheriff issues corresponding receipt ü Then takes and safely keeps it in his custody (3) Stocks or shares, or an interest in stocks or shares, of any corporation or company ü Leave with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ (4) Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery (a) Leave 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 (b) The following: 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 (5) The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee (1) Service made to the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached (2) A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.

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(6) If the property sought to be attached is 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. Note: All properties exempt from execution are likewise exempt from attachment (Sec. 2, Rule 57; Sec 13, Rule 39) When Applied For (1) At the commencement of the action; or (2) At any time before the entry of judgment. Who may apply It may be applied for by the plaintiff or any proper party (including a defendant who filed a counterclaim, crossclaim, or a third party complaint). Stages in the manner of the issuance of writ of preliminary attachment The grant of provisional remedy of attachment involves 3 stages: (1) Issuance of the order granting the application (2) Issuance of the writ proper (3) Implementation of the writ For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained, but once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant.14 PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON A third person who has a claim to the property attached may avail of the following remedies: (1) File terceria or third-party claim (Rule 57, Sec. 14) A third-party claim may be filed with the sheriff while he has possession of the properties levied upon, this being the only time fixed for the purpose (a) The claimant makes an affidavit of his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff (b) Substantial identical procedure as in terceria in Rule 39 (2) File independent action to recover property (Uy v. CA, 191 SCRA 275); or (3) File motion for intervention (available only before judgment is rendered) DISCHARGE AND THE 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. Ways of Discharging Attachment (1) Movant makes a cash deposit, or files a counterbond executed to the attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. (2) Movant may file for an order on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient.

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PROVISIONAL REMEDIES

If the attachment is excessive, the discharge shall be limited to the excess. Note: There is a difference between the bond for issuance of writ and bond for lifting the writ SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED The sheriff may cause the judgment to be satisfied out of the property attached in the following manner: (1) 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; (2) 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; (3) 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 amounts 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)

C. Preliminary Injunction INJUNCTION A judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a particular act PRELIMINARY INJUNCTION – DEFINITION AND NATURE A preliminary Injunction (PI) is an order granted at any stage of an action prior to judgment of final order, requiring a party, court, agency, or person to refrain from a particular act or acts. It is an ancillary or preventive remedy where a court requires a person, party or even a court or tribunal either to REFRAIN (prohibitory) from or to PERFORM (mandatory) particular acts during the pendency of an action. It is merely a temporary remedy subject to the final disposition of the principal action.26 INJUNCTION AS MAIN PRELIMINARY ACTION INJUNCTION Independent action Ancillary Seeks a judgment embodying Seeks to preserve status a final injunction quo Assailed by petition for Assailed by timely appeal certiorari

Purpose: To preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action.27 Status quo - The last actual, peaceable and uncontested situation which precedes a controversy. It is the situation existing at the time of the filing of the case.

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PROVISIONAL REMEDIES

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 either refrain from or to perform a particular act or acts during the pendency of the action. May exceed 20 days

TRO Issued to preserve the status quo until the hearing of the application for preliminary injunction. RTC: Does not exceed 20 days CA: Does not exceed 60 days SC: Indefinite Maintains the status quo

Restrains or requires the performance of particular acts REQUISITES (a) There must be a verified application (Sec. 4, Rule 58); (b) The applicant must establish: (1) That he has a right to relief or a right to be protected (2) That the act against which the injunction is sought violates such right; (3) Paramount necessity to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to him; (Sec. 3, Rule 58) (c) A bond must be posted, unless otherwise exempted by the court; (Sec. 4, Rule 58); and (d) Notice and hearing (Sec. 5, Rule 58); KINDS OF INJUNCTION Preliminary Prohibitory Injunction Purpose: prevent a person from the performance of a particular act or acts

Preliminary Mandatory Injunction Purpose: to require a person to perform a particular act or acts

This is an extreme remedy which will be granted only upon a showing that: (a) The invasion of the right is material and substantial (b) Right of complainant is clear and unmistakable (c) There is an urgent and paramount necessity (Almeida v. CA, G.R. No. 159124) The act has not yet been The act has already been performed performed and this act has violated the rights of another. Status Quo is preserved. Status Quo is restored. WHEN WRIT MAY BE ISSUED It may be issued at any stage prior to the judgment or final order by the court where the action or proceeding is pending. à If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. If after the trial of the action it appear that the applicant is entitled to have the act or acts complained of permanently enjoined

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Preliminary Injunction (Sec 1 Rule 58) granted at any stage of an action prior to the judgment or final order therein.

Final Injunction (Sec 9 Rule 58) issued in the judgment in the case permanently restraining the defendant or making the preliminary injunction permanent. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION (1) 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; or (2) The commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (3) A party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (Sec 3, Rule 58) DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER (1) Upon a showing of its insufficiency. (2) On other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. (3) 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. (Sec. 6, Rule 58) DURATION OF TRO (1) The 20-day period of effectivity of a TRO is nonextendible; the restraining order automatically terminates at the end of such period without the need of any judicial declaration to that effect. (Aquino v. Luntok, G.R. No. 84324) (2) If a TRO was issued by the Court of Appeals, it shall be effective for 60 days from service on the party sought to be enjoined. (3) If a TRO was issued by the Supreme Court, it shall be effective until further orders. (Sec. 5, Rule 58) IN RELATION TO RA 8975 – BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASE INVOLVING GOVERNMENT INFRASTRUCTURE PROJECTS General Rule: No court, except the Supreme Court, shall issue any temporary restraining order, 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 rightof-way and/or site or location or location of any government project; (2) Bidding or awarding of contract/project of the

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(3) (4) (5)

national government; Commencement, prosecution, execution, implementation, operation of any such contract or project; Termination or recission of any such contract/project; and The undertaking or authorization of any other lawful activity necessary for such contract/project. (Sec. 3, RA 8975)

PROVISIONAL REMEDIES

(1)

(2)

(3)

Applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost, removed, or materially injured unless a receiver is appointed; In foreclosure of mortgage, when the property is in danger of being wasted, dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties; After judgment, to preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution. When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation.

Exceptions (1) When the mattier is of extreme urgency; (2) If it involes a constitutional issue; (3) A grave injustice and irreparable injury will arise unless a TRO is issued.

(4)

Note: In this case, the application shall file a bond in an amount to be fixed by the court and 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. (Sec. 3, RA 8975) RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT When an application for a writ of preliminary injunction or TRO is made in a complaint or other initiatory pleading, the case, if filed in a multi-sala court, shall be raffled only after notice to and in the presence of the adverse party. In any event, such notice shall be preceded or contemporaneously accompanied by a 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.

The property must be under litigation. REQUISITES (1) Verified application; (2) Applicant must have an interest in the property or funds subject of the action; (3) Application must show that the property or funds is in danger of being lost, wasted, or dissipated (4) Appointed by the court where the action is pending, or by the CA or by the SC, or a member thereof; (5) Applicant‘s bond conditioned on paying the adverse party all damages he may sustain by the appointment of the receiver in case the appointment is without sufficient cause; (6) Receiver takes his oath and files his bond.

However, it is not available where the summons could not be served personally or by substituted service despite diligent efforts or where the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof. (Sec. 4(c), Rule 58)

D. Receivership (Rule 59) Purpose For the preservation of, and at making more secure existing rights; 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 (Riano) 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.33 He is an officer of the court who is indifferent to the litigants and neutral. A receiver is not a representative party under Rule 3 but a real party in interest, BUT he cannot file a case without the consent of the receivership court. CASES WHEN A RECEIVER MAY BE APPOINTED UPON VERIFIED APPLICATION, one or more receivers of the property which is the subject if the action may be appointed by the court where the action is pending in the following cases:

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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) REQUIREMENTS BEFORE ISSUANCE OF AN ORDER APPOINTING A RECEIVER Who may grant receivership (1) Court, in which the action is pending (2) Court of Appeals (3) Supreme Court, or any member thereof Who may be appointed The general rule is that neither to a litigation should be appointed receiver without the other's consent because "a receiver ought to be an indifferent person between the parties" and "should be impartial and disinterested" (Alcantara v. Abas, G.R. No. L-14890) GENERAL POWERS OF RECEIVER (1) Bring and defend, in such capacity, actions in his own name. (2) Take and keep possession of the property in controversy; (3) Receive rents; (4) Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; (5) Compound for and compromise the same; (6) Make transfers; (7) Pay outstanding debts; (8) Divide the money and other property that shall remain among the persons legally entitled to receive the same. (9) Generally to do such acts representing the property as the court may authorize; and (10) Invest fund in his hands, only by order of the court upon the written consent of all the parties.

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No action may be brought by or against a receiver without leave of the court which appointed him. A receiver may not invest funds without an order from the court and without the written consent of the parties to the action. TWO KINDS OF BONDS 1. Applicant‘s Bond – to pay the damages the adverse party may sustain by reason of appointment of receiver; and 2. Receiver‘s Bond – to answer for receiver’s faithful discharge of his duties. TERMINATION OF RECEIVERSHIP (1) The Court shall determinine that the necessity for a receiver no longer exists (2) On motion of either party or motu proprio, (3) Due notice shall be given to all parties (4) A hearing shall be conducted (5) The court shall then settle the accounts of the receiver (6) The court shall direct delivery of the funds or property in his possession to the person adjudged entitled thereto, and then (7) Shall order the discharge of the receiver. The receiver shall be entitled to a reasonable compensation which is to be taxed as costs upon the defeated party or apportioned as justice requires.

E. Replevin (Rule 60) Replevin is a provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin It 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 WHEN MAY A WRIT OF REPLEVIN BE ISSUED (1) At the commencement of the action (2) At any time before the defendant files his answer Note: for which reason there can be no replevin before the appellate courts. WHO MAY AVAIL It is available to any party praying for the recovery of possession of personal property unjustly detained (Sec. 1, Rule 60) REQUISITES (a) That the applicant is the owner of the property claimed; (b) That the property is wrongfully detained by the adverse party; (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; (Sec. 2, Rule 60) and (d) Primary purpose is to allow the plaintiff to retain the thing during the pendency of the action and to hold it pendente lite. (Rivera v. Vargas, G.R. No. 165895

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PROVISIONAL REMEDIES

AFFIDAVIT AND BOND Procedure for the application for Replevin: (1) File an APPLICATION at the commencement of the action or at any time before defendant answers. (2) Application must contain an AFFIDAVIT The affidavit must show that (1) Applicant is the owner of the property claimed particularly describing it, or is entitled to the possession thereof; (2) Property is wrongfully detained by the adverse party; (3) Property has not been taken for tax assessment or a fine pursuant to law, or seized under a writ of execution or under custodia legis; and (4) Actual market value of the property. Applicant must give a BOND, executed to the adverse party and double the value of the property. (Sec. 2, Rule 60) REDELIVERY BOND Value: in double of the value of the property as stated in the affidavit aforementioned Purpose: for the return of the property to the defendant of such sum as he may recover from the plaintiff in the action. (Sec. 2, Rule 60) SHERIFF’S DUTY IN THE IMPLEMENTAITON OF THE WRIT (1) Serve a copy of the order together with a copy of the application, affidavit and bond to the adverse party; (2) Take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody; (3) Demand delivery of the property if the property is concealed in a building or enclosure, and if be not delivered, cause the building or enclosure to be broken open and take the property into his possession; (4) After taking possession, keep the property in a secure place and shall be responsible for its delivery to the party entitled thereto. WHEN PROPERTY IS CLAIMED BY THIRD PARTY (1) Third party shall file and serve affidavit upon sheriff and applicant stating his entitlement to possession and shall serve the affidavit upon the sheriff while the latter has possession of the property; (2) Sheriff shall return the property to third person unless applicant files a bond (same amount as the value of the property) approved by court to indemnify the third person; (3) Claim for damages upon said bond must be filed within 120 days from date of filing of the bond. Note: When the bond is filed, the sheriff shall not be liable for damages for the taking or keeping of such property.

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PROVISIONAL REMEDIES

The party-claimant is not precluded from vindicating his claim and may maintain an action and seek injunctive relief against the sheriff. The applicant is likewise not precluded from claiming damages against the third party who filed a frivolous or spurious claim in the same or separate action, (Sec. 7, Rule 60). (4)

(5)

Demand delivery of the property if the property is concealed in a building or enclosure, and if be not delivered, cause the building or enclosure to be broken open and take the property into his possession; After taking possession, keep the property in a secure place and shall be responsible for its delivery to the party entitled thereto.

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Special Civil Actions

NATURE OF SPECIAL CIVIL ACTIONS Special civil actions are basically ordinary civil proceedings; what makes them special are the distinct peculiarities inherent in their very nature not found in ordinary civil actions. The Supreme Court observed that partition of real estate , quo warranto, certiorari, prohibition and mandamus, expropriation and foreclosure of mortgage are actions in themselves, but possessing special matters that required special procedures. For this reason, these proceedings are classified as special civil actions. (De Fiesta vs. Llorente, 25 Phil. 544)

SPECIAL CIVIL ACTIONS

ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS ORDINARY CIVIL SPECIAL CIVIL ACTIONS ACTIONS A party sues another for A civil action subject to the enforcement or specific or special rules protection of a right or the prevention or redress of a wrong Governed by the rules for Ordinary rules apply ordinary civil actions primarily but subject to the specific rules Involves two or more Involves two or more parties parties Initiated by a complaint Some are initiated by a complaint; some by petition Based on a cause of action Some special civil actions have no cause of action

A. JURISDICTION AND VENUE VENUE JURISDICTION Interpleader

Plaintiff’s or Defendant’s Residence

MTC – value of claim or personal property does not exceed P300K outside Metro Manila or MeTC – does not exceed P400K in Metro Manila; MTC - if real property: does not exceed P20K and the case is filed outside Metro Manila MeTC – does not exceed P50K in Metro Manila RTC – if the value exceeds the amounts above or if exclusively within RTC’s jurisdiction i.e. incapable of pecuniary estimation

Petitioner’s or

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GR: RTC, because it

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Declaratory Relief

Special Civil Actions

Respondent’s Residence

is incapable of pecuniary estimation. XPN: If the petition has far-reaching implications and it raises questions that should be resolved, it may be treated as one for prohibition or for mandamus, which the SC and CA may take cognizance

Expropriation

Foreclosure of Real Estate Mortgage

real property or a portion thereof; If personal property, plaintiff’s or defendant’s residence Location of Real Property or a portion thereof

NOTE: Where the action is one for quieting of titile the jurisdiction will depend upon the assessed value of the property.

Certiorari, Prohibition and Mandamus

RTC of the place where the respondent is situated -if filed with the Sandiganbayan, location of the respondent is immaterial

RTC, CA, SC, Sandiganbayan in aid of its appellate jurisdiction

Quo Warranto

RTC of the place where the respondent or any of the respondents resides

RTC, CA, SC

-if filed with the CA, SC or Sandiganbayan, location of respondent is immaterial -if SolGen commenced the action, it should be with the RTC-Manila or CA, or SC or Sandiganbayan Sandiganbayan has exclusive original jurisdiction on quo warranto cases filed by the PCGG Location of the

QUO WARRANTO UNDER RULE 66 Sandiganbayan has exclusive orgiginal jurisdiction on quo warranto arising or that may arise in cases filed under EO No. 1,2,14,14-A but this must be in aid of its appellate jurisdiction and not exclusive of the SC QUO WARRANTO UNDR THE OMNIBUS ELECTION CODE Comelec, RTC OR MTC as the case may be

RTC – incapable of

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Partition

Location of Real Property or a portion thereof (IF SEVERAL DISCTINCT PARCELS OF LAND ARE IN DIFF PROVINCES, VENUE MAY BE IN RTC OF ANY OF SAID PROVINCES); If personal property, plaintiff’s or defendant’s residence

pecuniary estimation

RTC – incapable of pecuniary estimation MTC OR RTC- an action to forclose a rem may also be considered an action involving interest in real property. under B.P. 129, as amended, where the action is one “involving title to, or possession of, real property or any interest therein, jurisdiction depends on the assessed value (MTC: not more than 20k or in Metro Manila not more that 50K; mortgage debt not more than 300k or in Metro Manila not more than 400k, othwerwise the action shall be filed in RTC (Riano/ Feria and Noche 2007) RTC – incapable of pecuniary estimation However, an action for partition of real property also involves “interest in real property.” All civil actions involving title to, or possession of, real property or any interest therein, the jurisdction depend on the assessed value. (Sec 19(2) of BP 129 as amended) MTC – personal property not more than 300K and in Metro Manila not

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more than 400K; real property not more than 20K and in metro manila not more than 50K. beyond these, RTC. (Feria cited by Riano)

Forcible Entry and Unlawful Detainer

Location of the Property

MTC

Contempt

Where the court involved is sitting

MTC, RTC, CA or SC

B. Interpleader (Rule 62) PURPOSE A special civil action whereby a person who has property in his possession or an obligation to render, wholly or partially, without claiming any right therein, or an interest, which in whole or in part is not disputed by the claimants, comes to court and asks that the person who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine finally who is entitled to the same. (Alvarez v. Commonwealth, 65 Phil 302) The remedy is afforded not to protect a person against double liability but to protect him against double vexation in respect of one’s liability. (Beltran v. People’s Homesite, G.R. No L-25138, August 28, 1969) The purpose of Interpleader is to compel conflicting claimants to interplead and litigate their several claims among themselves REQUISITES FOR INTERPLEADER 1. The plaintiff claims no interest in the subject matter, or if he has an interest, his claim is not disputed; 2. There must be at least 2 or more conflicting claimants; 3. The conflicting claims are made against the same person (plaintiff); 4. The subject matter must be one and the same (and derived from the same source). WHEN TO FILE Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves (Sec. 1) GENERAL RULE: Within a reasonable time. An action for interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either

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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) INTERPLEADER VIS-À-VIS INTERVENTION UNDER RULE 19 INTERPLEADER INTERVENTION UNDER RULE 19 A Special Civil Action, Not an original action but independent and original merely ancillary and depends upon the existence of a pending action Commenced by filing a Commenced by a motion complaint for leave to intervene filed in a pending case with the attached pleading-inintervention Filed by a person who has Filed by a person who has a no interest in the subject legal interest in the: matter of action or if he subject matter of the has interest, the same is litigation, the success of not disputed by the either parties, an interest claimants against both, or may be adversely affected by the disposition or distribution of property in the custody of the court or of an officer thereof The defendants are The defendants are already brought into the action parties to an existing suit because they are sued and impleaded in the complaint IMPROPRIETY OF INTERPLEADER AS REMEDY It is believed that where the allegations of the complaint do not show conflicting claims between or among the persons required to interplead, the complaint for interpleader is subject to dismissal on the ground of impropriety of the interpleader, not a failure to state a cause of action under Rule 16 because the meaning of a cause of action in ordinary civil actions cannot apply to an interpleader. Besides, for an interpleader to be proper such conflicting claims must exist (Sec. 1, Rule 62, Rules of Court). Conversely, there is impropriety where no such adverse claims can be found from the reading of the complaint. (Riano)

C. Declaratory Relief and Similar Remedies (Rule 63)

NATURE An action for declaratory relief is brought to secure an authoritative statement of the rights and obligations of the parties under a contract or a statute for their guidance in the enforcement or compliance with the same (Meralco vs. Philippine Consumers Foundation, 374 SCRA 262) PURPOSE The purpose is to seek for a judicial interpretation of an instrument or for a judicial declaration of a person‘s

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rights under a statute and not to ask for affirmative reliefs like injunction, damages or any other relief beyond the purpose of the petition as declared under the Rules. SUBJECT MATTER OF DECLARATORY RELIEF The subject matter in a petition for declaratory relief is any of the following: a) Deed; b) Will; c) Contract or other written instrument; d) Statute; e) Executive order or regulation; f) Ordinance; or g) Any other governmental regulation The list is exclusive (Lerum v. Cruz, 87 Phil. 652, 657) Note: Declaratory relief is not proper in following cases: a) Citizenship b) Abstract, hypothetical question c) Hereditary rights d) Based on contingent event e) No administrative remedy has been exhausted f) Pretends to be declaratory relief g) Third-party complaint WHO MAY FILE THE ACTION (1) Any person interested under a deed, will, contract or other written instrument or whose rights are affected by a statute, executive order or regulation, ordinance or other governmental regulation may before breach or violation thereof, bring an action in the RTC to determine any question of construction or validity arising and for a declaration of his rights or duties, thereunder (Sec. 1). (2) Those who may sue under the contract should be those with interest under the contract like the parties, the assignees and the heirs as required by substantive law (Art. 1311, Civil Code). (3) If it be a statute, executive order, regulation or ordinance, the petitioner is one whose rights are affected by the same (Sec. 1, Rule 63). The other parties are all persons who have or claim any interest which would be affected by the declaration. The rights of person not made parties to the action do not stand to be prejudiced by the declaration (Sec. 2). OTHER PARTIES 1. All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in the Rules, prejudice the rights of persons not parties to the action. (Sec 2, Rule 63). 2. 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). 3. 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).

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REQUISITES OF AN ACTION FOR DECLARATORY RELIEF (1) The subject matter must be a deed, will, contract or other written instrument, statute, executive order or regulation or ordinance; (2) The terms of said document or the validity thereof are doubtful and require judicial construction; (3) There must have been no breach of said document; (4) There must be actual justiciable controversy or the ripening seeds of one( there is threatened litigation the immediate future); there must be allegation of any threatened, imminent and inevitable violation of petitioner‘s right sought to be prevented by the declaratory relief sought; (5) The controversy is between persons whose interests are adverse; (6) The issue must be ripe for judicial determination e.g. administrative remedies already exhausted; (7) The party seeking the relief has legal interest in the controversy; and (8) Adequate relief is not available thru other means. Stated otherwise, the requisites are: (a) There must be a justiciable controversy; (b) The controversy must be between persons whose interests are adverse; (c) The party seeking the relief must have legal interest in the controversy; and (d) The issue is ripe for judicial determination (Republic vs. Orbecido III, 472 SCRA 114). WHEN MAY THE COURT REFUSE TO MAKE JUDICIAL DECLARATION Grounds for the court to refuse to exercise declaratory relief; a) A decision would not terminate the uncertainty or controversy which gave rise to the action; or b) The declaration or construction is not necessary and proper under the circumstances as when the instrument or the statute has already been breached (Sec. 5). In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition. CONVERSION TO ORDINARY ACTION If before final termination of the case, a breach should take place, the action may be converted into ordinary action to avoid multiplicity of suits (Republic vs. Orbecido, G.R. No. 154380, Oct. 5, 2005). SPECIAL ISSUE ON DECLARATORY RELIEF The only issue that may be raised in such a petition is the question of construction or validity of provisions in an instrument or statute. (Province of Camarines Sur v. Court of Appeals, 600 SCRA 569) PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Reformation Of An Instrument It is not an action brought to reform a contract but to reform the instrument evidencing the contract. It presupposes that there is nothing wrong with the

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contract itself because there is a meeting of minds between the parties. The contract is to be reformed because despite the meeting of minds of the parties as to the object and cause of the contract, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, inequitable conduct or accident. The action is brought so the true intention of the parties may be expressed in the instrument (Art. 1359, CC). Where the consent of a party to a contract has been procured by fraud, inequitable conduct or accident, and an instrument was executed by the parties in accordance with the contract, what is defective is the contract itself because of vitiation of consent. The remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, CC). Reformation of the instrument cannot be brought to reform any of the following: a) Simple donation inter vivos wherein no condition is imposed; b) Wills; or c) When the agreement is void (Art. 1666, CC). CONSOLIDATION OF OWNERSHIP The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619) or conventional redemption (Art. 1601). When the redemption is not made within the period agreed upon, in case the subject matter of the sale is a real property, Art. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption, consolidates ownership or title upon the person of the vendee by operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570). Quieting Of Title To Real Property This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code). For an action to quiet title to prosper, two (2) indispensable requisites must concur, namely: 1. the plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of action, and

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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.

D. Review of Judgments and Final Orders or Resolutions of the COMELEC and COA (Rule 64 in relation to Rule 65) APPLICATION OF RULE 65 UNDER RULE 64 Sec. 7, Art. IX-A of the Constitution reads, ― "unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof." The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45 (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison, 176 SCRA 84). A party aggrieved by the judgment, final orders or resolution of the Commission on Elections and Commission on Audit may file a petition for certiorari under Rule 65 with the Supreme Court (Sec. 2, Rule 64, Rules of Court) If the mode review is petition for certiorari under Rule 65, then this means that the judgments or final orders of the constitutional commissions referred to in Rue 64 are not reviewable by appeal. Under Rule 65, certiorari is available only when there is no appeal, nor any other plain, speedy or adequate remedy in the ordinary course of law. (Riano, 2016) 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 Rule 64 Rule 65 Directed only to the judgments, final orders or resolutions of the COMELEC and COA;

Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions;

Filed within 30 days from notice of the judgment;

Filed within 60 days from notice of the judgment;

The filing of a motion for reconsideration or a motion for new trial if allowed, interrupts the period for the filing of the petition for certiorari. 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 reckoned from the notice of denial.

The period within which to filed the petition if the motion for reconsideration or new trial is denied, is another 60 days from notice of the denial of the motion.

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E. Certiorari, Prohibition and Mandamus DEFINITIONS AND DISTINCTIONS CERTIORARI A writ issued from the Supreme Court to any inferior court, board, officer exercising judicial or quasi-judicial functions whereby the records of a particular case is ordered to be elevated up for review and correction in matters of law. It is a prerogative writ and issued in the exercise of judicial discretion. There must be a showing of capricious, arbitrary and whimsical exercise of power for it to prosper PROHIBITION A writ by which a superior court prevents the inferior courts, a corporation, board or persons, from usurping or exercising a jurisdiction or a power with which they have not been vested by the law.(Matuguina Integrated vs CA) MANDAMUS A writ issued in the name of the State, to an inferior court, tribunal, corporation, board, officer, or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station. It is employed to compel the performance, when refused, of a ministerial duty. It does not compel the performance of a contractual obligation or to compel a course of conduct nor to control or review the exercise of discretion. CERTIORARI PROHIBITION MANDAMUS To whom May be May be May be directed directed directed directed against against any against any against any tribunal, board tribunal, tribunal, or officer corporation, corporation, exercising board, officer board, officer judicial or or person, or person quasi-judicial whether functions exercising judicial, quasijudicial or ministerial functions What 1. The entity 1. The entity 1. The entity – must be acted – acteda. Unlawfully alleged a. Without a. Without neglected a jurisdiction; jurisdiction; ministerial b. In excess of b. In excess of duty; or jurisdiction; or jurisdiction; or b. Unlawfully c. With c. With excluded GADALEJ GADALEJ another from the use and 2. There is no 2. There is no enjoyment of appeal or any appeal or any a right or other plain, other plain, office to speedy, and speedy, and which one is adequate adequate entitled remedy in the remedy in the ordinary ordinary 2. There is no course of law course of law appeal or any other plain, speedy, and adequate remedy in the ordinary

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Purpose

To annul or modify the judgment, order, resolution, or proceedings of the tribunal, board or officer

To compel the performance of a ministerial and legal duty

course of law To prevent an encroachmen t, excess, usurpation or assumption of jurisdiction

CERTIORARI UNDER RULE 65 AND APPEAL BY CERTIORARI UNDER RULE 45, DISTINGUISHED PETITION FOR APPEAL BY CERTIORARI CERTIORARI UNDER UNDER RULE 45 RULE 65 Special Civil Action Mode of Appeal (Original Action) Subject is interlocutory Subject is Final Judgment order or those in Rule 41, Section 1 Question of Jurisdiction Question of Law Filed within 60 days after Filed within 15 days after notice of judgment notice of judgment Filing of Motion for No Motion for Reconsideration required Reconsideration required Does not stay judgment Stays judgment Party is the court, Original parties tribunal or officer May be filed in the RTC, Filed in the Supreme Court CA or SC PROHIBITION AND MANDAMUS, AND INJUNCTION, DISTINGUISHED PROHIBITION and INJUNCTION MANDAMUS Strikes at once to the Usually recognizes the jurisdiction of the court jurisdiction of the court before which the proceeding is pending Directed to the court Directed only to the itself or the entity which parties-litigants, without exercised the any manner interfering discretionary in act, in with the court case of a mandamus

CERTIORARI REQUISITES 1. There must be a controversy. 2. The tribunal, board or officer against whom the controversy is brought exercises judicial or quasijudicial functions. 3. The tribunal, board or officer has acted without jurisdiction, or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction 4. There is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.

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GENERAL RULE: Filing of motion for reconsideration is required before filing for certiorari. EXCEPTIONS 1. When the case involves matters of extreme urgency (Matutina v. Buslon, August 24, 1960) 2. When the order or judgment complained of is a patent nullity (Luzon Surety v. Maribella, September 30, 1960) 3. When the question had been properly raised, argued and submitted to the respondent court and passed upon by it (Fernandez v. Caluag, December 20, 1961) 4. In the interest of justice and public welfare and advancement of public policy (Jose v. Zulueta) 5. Order was issued without or in excess of jurisdiction (Philippine Consumers Foundation v. NTC, 1983) 6. When relief is extremely urgent, there is no more need to wait for the resolution of motion for reconsideration (Vda. De Sayman v. CA, 1983) 7. When the question raised is purely of law (Central Bank v. Cloribel, 1972) WHEN MAY CERTIORARI PROSPER 1. Appeal is not a speedy and adequate remedy (SaludesvsPajarillo, 1947) 2. Order is issued without or in excess of jurisdiction (PNB vs Florendo, 1992) 3. In consideration of public welfare and for the advancement of public policy (Jose vsZulueta, 1961) 4. Order is a patent nullity (Marcelo vs De Guzman, 1982) 5. To avoid future litigation (St. Peter Memorial Park vs Campos, Jr., 1975) 6. To avoid a miscarriage of justice (EscuderovsDulay, 1988) 7. In furtherance of broader interest of justice and equities (MarahayvsMelicor, 1990) PROHIBITION REQUISITES 1. There is a controversy; 2. Respondent is exercising judicial, quasi-judicial or ministerial functions; 3. Respondent acted without or in excess of jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and 4. There must be no appeal, or other plain, speedy and adequate remedy MANDAMUS REQUISITES 1. There must be a clear legal right and duty 2. The act to be performed must be practical - within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated 3. Respondent must be exercising a ministerial duty – a duty which is absolute and imperative and involves merely its execution 4. The duty or act to be performed must be existing – a correlative right will be denied if not performed by the respondents; and 5. There is no other plain, speedy and adequate remedy in the ordinary course of law. preliminary injunction must be sought. (De Castro v. Judicial and Bar Council, 2010)

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MINISTERIAL DUTY – One which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Roble Arrastre, Inc. v. Villaflor 2006) WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS PROPER When there is no other plain, speedy, or adequate remedy in the ordinary course of law. WHEN PETITION FOR CERTIORARI IS PROPER Only to correct errors of jurisdiction, not errors of judgment. Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. (Suarez v. NLRC, 1998) WHEN PETITION FOR PROHIBITION IS PROPER 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 writ of preliminary injunction. (REGALADO) 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. (HERRERA) WHEN PETITION FOR MANDAMUS IS PROPER The purpose of mandamus is to compel the performance, when refused, of a ministerial duty, this being its main objective. 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. 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 wilful refusal to perform a required duty. (REGALADO) INJUNCTIVE RELIEF GENERAL RULE: The mere elevation of an interlocutory matter through a petition for certiorari does not by itself merit a suspension of the proceedings before a public respondent, applying Sec. 7, Rule 65. The public respondent shall proceed with the principal case WITHIN 10 DAYS from filing of the petition for certiorari with the higher court, absent a TRO or preliminary injunction, or upon its expiration. Failure may be a ground for an administrative charge (AM No. 07-7-12- SC) EXCEPTIONS: 1. When a writ of preliminary injunction or TRO is issued: The burden is on petitioner to show that there are meritorious grounds, i.e. there is an urgent necessity in order to prevent serious damage; or 2. Judicial courtesy: Even if there is no injunction issued, lower court should defer to higher court where there is a strong probability that the issues before the higher court would be rendered “moot

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and moribund as a result of the continuation of the proceedings in the” court of origin. (Republic v.Sandiganbayan, 2006) EXCEPTIONS TO FILING A MOTION FOR RECONSIDERATION BEFORE FILING PETITION A PETITION FOR CERTIORARI, PROHIBITION, AND MANDAMUS GENERAL RULE:A motion for reconsideration is an essential precondition for the filing of a petition for certiorari, prohibition or mandamus. It is a plain, speedy and adequate remedy. This is to enable the lower court, in the first instance, to pass upon and correct its mistakes without the intervention of the higher court. EXCEPTIONS: 1. When the issue is one purely of law; 2. When there is urgency to decide upon the question and any further delay would prejudice the interests of the government or of the petitioner; 3. Where the subject matter of the action is perishable; 4. When order is a patent nullity, as where the court a quo has no jurisdiction or there was no due process; 5. When questions have been duly raised and passed upon by the lower court; 6. When there is urgent necessity for the resolution of the question; 7. When Motion for Reconsideration would be useless, e.g. the court already indicated it would deny any Motion for Reconsideration; 8. In a criminal case, where relief from order of arrest is urgent and the granting of such relief by the trial court is improbable; 9. Where the proceeding was ex parte or in which the petitioner had no opportunity to object; 10. When petitioner is deprived of due process and there is extreme urgency for urgent relief; and 11. When issue raised is one purely of law or public interest is involved

Special Civil Actions

b. 2. 3.

Copies of all pleadings and documents relevant and pertinent to the case c. Sworn certification of non-forum shopping Contents of the petition a. Allegation of facts with certainty Prayer a. For certiorari: That judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require b. For prohibition: That judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. c. For mandamus: That judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

GENERAL RULE: The petition shall be filed not later than 60 days from notice of the judgment, order, or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than 60 days counted from the notice of the denial of the motion. The 60 day period is non-extendible. EXCEPTIONS: The court may grant extension which in no case shall exceed 15 days for compelling grounds EFFECTS OF FILING AN UNMERITORIOUS PETITION The filing of an unmeritorious petitions have an effect of dismissal by the court. Disciplinary sanctions may also be imposed for patently dilatory and unmeritorious petitions.

F. Quo Warranto (Rule 66)

REFLIEFS PETITIONER IS ENTITLED TO

QUO WARRANTO

1.

It is a demand made by the State upon some individual or association to show what right they exercise some franchise or privilege appertaining to the State, which according to the Constitution and laws of the land, they cannot legally exercise by virtue of the grant and authority of the State. (44 Am. Jur 88-89) It is a prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercise a public franchise. (3 Moran 208 [1970]) Allegations in quo warranto that certain persons usurped the offices, powers and functions of duly elected members of the board, trustees and/or officers make out a case for an intra-corporate controversy. Such falls under the jurisdiction of the SEC and is governed by its rules. (Calleja vs. Panday, 2006) It may be dismissed at any stage when it becomes apparent that the plaintiff is not entitled to the disputed public office, position or franchise. Courts are not compelled to still proceed when it is obvious that the petition is insufficient. (Feliciano v. Villasin, 2008)

Injunctive relief – 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) 2. Incidental reliefs as law and justice may require (Secs. 1-2, Rule 65) 3. Other reliefs prayed for or to which the petitioner is entitled (Sec. 8, Rule 65) ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES In election cases involving an act or an omission of a municipal or regional trial court, the petition [for certiorari, prohibition, or mandamus] shall be filed EXCLUSIVELY with the Commission on Elections, in aid of its appellate jurisdiction [Sec. 4, par. 3, Rule 65 as amended by AM No. 07-7-12-SC (2007)] PETITION AND CONTENTS 1. A verified petition is filed in the proper court which shall be accompanied by: a. A certified true copy of the judgment, order, or resolution subject thereof

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QUO WARRANTO FILED BY A PRIVATE INDIVIDUAL AND FILED BY THE SOLICITOR GENERAL, DISTINGUISHED QUO WARRANTO QUO WARRANTO (Rule 66) (OEC Sec. 25) Filed by 1. Solicitor General Any voter whom or Public Prosecutor (a) In behalf of the Republic or (b) upon the request or relation of another person. 2. Individual claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. Venue 1. If commenced 1. If filed against by Solicitor election of a General: RTC Member of Manila, CA or Congress, SC; Regional, 2. Otherwise: RTC Provincial or City with jurisdiction Officer; over the area 2. If against a where municipal or respondent barangay officer: resides, CA or appropriate RTC SC or MTC, respectively. Period Within 1 year from Within 10 days after of Filing ouster or from the proclamation of time the right to the results; position arose; Grounds 1. A person, who 1. Ineligibility usurps, intrudes 2. Disloyalty to the into or Republic unlawfully holds or exercise a public office, position or franchise; 2. A public officer, who does or suffers an act which, by provision of law, constitutes a ground for forfeiture of office. Effect The Court will oust The occupant who the person illegally was declared appointed and will ineligible or disloyal order the seating will be unseated but person who was the petitioner may be legally appointed declared the rightful and entitled to the occupant of the office. office if the

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respondent is disqualified and the petitioner who received the second number of votes. (Maquiling v. COMELEC) WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines through the Solicitor General or public prosecutor. 1. Compulsory: When to commence: a. When directed by the President; OR b. When upon complaint or otherwise he has good reason to believe that any of the following cases can be established by proof: a. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 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; or c. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. 2. Discretionary: When to commence: a. Upon permission of the court; AND b. At the request and upon the relation of another person, provided that 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

WHEN INDIVIDUAL MAY COMMENCE AN ACTION A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. ACTION BY PRIVATE INDIVIDUAL

Necessary for the petitioner to prove his right to the office in dispute; otherwise the court shall not pass on the right of the defendant in office. Burden is on the petitioner to show his entitlement to the office; presumption exists in favor of defendant

ACTION BY SOLICITOR GENERAL OR PUBLIC PROSECUTOR (IN THE NAME OF THE REPUBLIC) Not necessary that there be a person claiming to be entitled to the office alleged to have been usurped; thus the duty of the court is to pass upon the right of the defendant only No presumption exists in favor of defendant; Solicitor General does not prove entitlement to office

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PARTIES AND CONTENTS OF THE PETITION All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. The petition shall set forth: 1. The name of the person who claims to be entitled thereto, if any; and 2. An averment of his right to the same and that the respondent is unlawfully in possession thereof. VENUE Courts where plaintiff may file quo warranto: 1. Supreme Court (Section 5 [1], Article VIII, 1987 Constitution 2. Court of Appeals (Sec. 9 [1], BP 129) 3. RTC exercising jurisdiction over the territorial area where the respondent resides (Sec 21 [1], BP 129) 4. Sandiganbayan(RA 8429 in cases which are relevant to its jurisdiction) 5. COMELEC (over quo warranto cases) 6. MTC (barangay level election contest) (RegatchovsCleto, 1983) NOTE: If filed by the Solicitor General, it may directly bring the action before the RTC of Manila or the CA or the SC. Hierarchy of courts must still be observed, although not expressly provided for the rule. (Mendoza v. Villas, 2011) JUDGMENT IN QUO WARRANTO ACTION Sec. 9. Judgment where usurpation found, Rule 65 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: 1. That such respondent be ousted and altogether excluded therefrom; and 2. That the petitioner or relator, as the case may be, recover his costs; and 3. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE 1. Execution of the office after taking oath of office and executing any official bond required by the law 2. Demand from respondent all the books and papers appertaining to the office to which judgment relates. a. Respondent’s neglect or refusal to comply with the demand is punishable by contempt 3. Bring an action for damages against respondent for damages sustained by him by reason of the usurpation. a. Must be commenced within 1 year after entry of judgment establishing petitioner’s right to the office in question. Quo Warranto is an action which violates the rule on splitting the cause of action. It is designed for the purpose of determining who between the contestants is entitled to hold office. Once the court has decided this issue, the law authorizes the winning party to file a

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subsequent complaint for the recovery of damages arising from the usurpation of office. LIMITATIONS An action for quo warranto can be filed against the alleged usurper not later than 1 year from date of usurpation. JUDGMENT FOR COSTS The court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires. RELATOR – person mentioned in Section 3; the person who will request the Solicitor General to file the case

G. Expropriation EXPROPRIATION is the power of the sovereign state to take or authorize the taking of any property within its jurisdiction for public use without the owner’s consent (18 Am Jur. 631) NOTE: If the owner consents, then there is no need for filing the case. Expropriation is not synonymous to Eminent Domain. The latter is the inherent power of the State to take property for public use. The former is the proceeding to implement eminent domain. REQUISITES FOR THE VALID EXERCISE OF THE RIGHT OF EMINENT DOMAIN 1. Property to be taken must be private; 2. There must be due process of law; 3. Payment of just compensation; and 4. Taking must be for public use PUBLIC USE - One which confers some benefit or advantage to the public; it is not confined to actual use by public. It is measured in terms of right of public to use proposed facilities for which condemnation is sought and, as long as public has right of use, whether exercised by one or many members of public, a ‘public advantage’ or ‘public benefit’ accrues sufficient to constitute a public use. (Manosca v. CA, 1996) HOWEVER, the term “public use” has acquired a more comprehensive coverage -to the literal import of the term signifying strict use or employment by the public has been added the broader notion of indirect public benefit or advantage. (City of Manila v. Te, 2011) LIMITATION TO THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN 1. Exercised only by the State or entities authorized by the law; 2. Inherent power belongs to the national government and not to the local government, except when the law and charters expressly authorize them to do so; 3. Just compensation must be paid to the property owner – 4. element of due process in expropriation; right value plus no delay in payment; 5. Due process must be observed – compliance with the rules provided; and 6. Only as much property will be taken as necessary for the legitimate purpose of expropriation

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Nothing in the law limits the expropriation to only real property. Personal property may also be expropriated but not money. MATTERS TO ALLEGE IN A COMPLAINT FOR EXPROPRIATION The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty: 1. The right and purpose of expropriation; 2. Describe the real or personal property sought to be expropriated; and 3. Join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing the separate interest of each defendant. 4. Make the following averments, if needed: a. If title appears to be in the Republic, although occupied by private individuals; b. If title is otherwise obscure or doubtful so that plaintiff cannot with accuracy or certainty specify who the real owners are. TWO STAGES IN AN EXPROPRIATION PROCEEDING 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety to exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of condemnation declaring the expropriation to be proper and legal. These orders are final and executory and hence, may be appealed (Municipality of Binanvs Garcia, 1989) 2.

Determination of just compensation.

Done with the assistance of not more than three commissioners. The order determining just compensation is final and appealable. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO R.A. NO. 8974 Plaintiff shall have the right to take or enter upon possession of the real property upon: 1. Filing of complaint or at any time thereafter, and after due notice to defendant; 2. Making preliminary deposit PRELIMINARY DEPOSIT - Money which the plaintiff initially deposits in order for him to be placed in possession of the property involved PURPOSE: 1. To act as a down payment - if government wins and the amount of just compensation is fixed by the court, preliminary deposit becomes the down payment; 2. To act as damages - if government loses, defendant entitled to claim for damages (Republic vs Baylosis, 1960) VALUE: 1. Real property – assessed value of the property for taxation purposes. 2. Personal property – provisionally ascertained and the amount to be deposited is fixed by the court.

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WHERE: Deposit shall be made with the authorized government depositary. (Amount is to be held by such bank subject to the orders of the court) FORMS OF DEPOSIT: GENERAL RULE: Deposit shall be in money. EXCEPTION: The court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. After the deposit, court shall order sheriff or proper officer to place plaintiff in possession of the property. Such officer shall promptly submit a report to the court with service of copies to parties. REPUBLIC ACT. 8974 (2000): An Act to Facilitate the Acquisition of Right-of-Way, Site or Location for National Government Infrastructure Projects and for Other Purposes EXPROPRIATION RA 8974 UNDER RULE 67 Scope Expropriation in Only when general, for both national real and personal government properties expropriates real property for national government infrastructure projects For writ of Government is Government is possession required to make required to make to issue preliminary immediate deposit payment to owner upon filing of complaint Amount of Equal to assessed Equal to the payment or value of real market value of deposit property for the property as purposes of stated in the tax taxation declaration or current relevant zonal value of BIR, whichever is higher, and value of improvements and/or structures using replacement cost method NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of: 1. 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and 2. The value of the improvements and/or structures as determined under Sec. 7 of R.A. 8974, supra (Sec. 4, RA 8974)

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DEFENSES AND OBJECTIONS If a defendant has no objection or defense to the action or the taking of his property: 1. He may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. 2. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has objection(s) to the filing of the complaint or any objection (s) or defense(s) to the taking of his property: 1. He shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. 2. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. GENERAL RULE: A defendant waives all defenses and objections not so alleged. EXCEPTION: In the interest of justice, the court may permit amendments to the answer which shall be made not later than 10 days from the filing thereof. Just compensation may be proven with or without objections/defense, and whether or not defendant appeared/answered: In any case, in the determination of just compensation, defendant may present evidence as to the amount of compensation to be paid. ORDER OF EXPROPRIATION It is the order declaring that the plaintiff has lawful right to take the property. WHEN IS IT ISSUED? 1. Objections or defenses against the right of plaintiff to expropriate are overruled; or 2. No party appears to defend the case CONTENTS OF THE ORDER 1. That the plaintiff has a lawful right to take the property sought to be expropriate; 2. For the public use or purpose described in the complaint; and 3. Upon payment of just compensation a. To be determined as of the date of taking, or b. The filing of the complaint, whichever came first REMEDY OF THE AGGRIEVED PARTY 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. EFFECT After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable.

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NOTE: From the moment that the court issues such order, the property is deemed expropriated. This marks the end of Stage 1 of the proceeding. ASCERTAINMENT OF JUST COMPENSATION Upon the rendition of the order of expropriation: 1. 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. 2. The order of appointment shall designate: a. The time and place of the first session of the hearing to be held by the commissioners; and b. Specify the time within which their report shall be submitted to the court. 3. Copies of the order shall be served on the parties. 4. 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. NOTE: Appointment of commissioners is mandatory. Just compensation should be determined as of the date of the time taking of the property or the filing of the complaint, whichever comes first. PROCEEDINGS BY COMMISSIONERS Before entering upon the performance of their duties: 1. 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. 2. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them. DUTIES 1. The commissioners shall view and examine the property sought to be expropriated and its surroundings, and may measure the same. a. Unless the parties consent to the contrary and after due notice to the parties to attend b. After which either party may, by himself or counsel, argue the case. 2. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. REPORT BY COMMISSIONERS The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon

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such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. 1. The commissioners shall make a full and accurate report to the court of all their proceedings 2. Such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. 3. 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. Except as otherwise expressly ordered by the court 4. 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. ACTION UPON COMMISSIONERS’ REPORT Upon the expiration of the period of 10, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may: 1. After hearing, accept the report and render judgment in accordance therewith; 2. Recommit to commissioners for further report of facts, for cause shown; 3. Set aside the report and appoint new commissioners; or 4. Accept the report in part and reject in part; and 5. Make such order or render such judgment as shall secure the plaintiff (as to its right to expropriate) and the defendant (as to his right to just compensation) Determination of just compensation is a judicial function, which cannot be encroached upon the legislative or executive branch of government (EPZA vs Dulay, 1987) RIGHTS OF PLAINTIFF AFTER JUDGMENT AND PAYMENT 1. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment including legal interest thereon from the taking of the possession of the property; or 2. After tender to him of the amount so fixed and payment of the costs, the plaintiff shall have: a. The right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment; or b. The right to retain it should he have taken immediate possession thereof. EFFECT OF REFUSAL TO RECEIVE PAYMENT If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, it 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.

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NOTE: Upon payment of just compensation will the plaintiff become the owner of the property. From that moment, the government acquires the right to possess EFFECT OF APPEAL The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. EFFECT OF REVERSAL If the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the RTC to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. COSTS The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. EFFECT OF ENTRY OF JUDGMENT CONTENTS OF JUDGMENT 1. Statement of the particular property or interest therein expropriated, with adequate description; and 2. Nature of the public use or purpose for which it is expropriated. WHEN TITLE IS VESTED 1. If personal property, upon payment of just Compensation; 2. If real property, upon payment of just compensation and recording of the judgment in the registry of deeds where the property is situated PECULIARITY OF THE PROCEEDINGS 1. Multiple appeals are allowed and the period to appeal is 30 days; no record of appeal is required. 2. The procedure is not summary but there are prohibited pleadings, such as counterclaim, crossclaim, etc 3. Even if defendant is declared in default, he can still participate in the proceedings (i.e. determine just compensation) 4. Even if defendant accepts money as just compensation, he can still assail the judgment on the propriety of the expropriation Q: How to determine just compensation in expropriation cases? A: Just compensation means the property’s fair market value at the time of the filing of the complaint, or "that 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 therefor."The measure is not the taker’s gain, but the owner’s loss. In the determination of such value, the court is not limited to the assessed value of the property or to the schedule of market values determined by the provincial or city appraisal committee; these values consist but one factor in the judicial valuation of the property. The nature and character of the land at the time of its taking is the principal criterion for determining how much just compensation should be given to the

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landowner All the facts as to the condition of the property and its surroundings, as well as its improvements and capabilities, should be considered (NPC vs. Tiangco, 2007).

H. Foreclosure of Real Estate Mortgage MORTGAGE, DEFINED It is an interest in the land created by a written instrument providing security for the performance of a duty or the payment of debt. The mortgage operates as a conveyance of the legal title to the mortgagee, but such title is subject to defeasance on payment on the debt or performance of the duty by the mortgagor. FORECLOSURE, DEFINED Remedy available to the mortgagee by which he subjects the mortgaged property to the satisfaction of the obligation to secure which the mortgage was given To shut out, bar or destroy an equity of redemption; a termination of all the rights of the mortgagor or his grantee in the property covered by the mortgage; procedure by which the mortgaged property is sold on default of mortgagor in satisfaction of the mortgage debt There can be a loan without mortgage but there cannot be a mortgage without a loan. Mortgage is only an accessory contract and the loan is the principal one. REAL ESTATE MORTGAGE, DEFINED It is an accessory contract executed by a debtor in favor of a creditor as a security for the principal obligation. This principle is usually a simple loan or mutuum described in Article 1953 of the Civil Code of the Philippines. (Riano, 2016) To be a real estate mortgage, the contract must be constituted on either immovables (real property) or alienable real rights. If constituted on movables, the contract is a chattel mortgage. (Art. 2124, Civil Code) DRAGNET CLAUSE OR BLANKET MORTGAGE CLAUSE, DEFINED A "blanket mortgage clause," also known as a "dragnet clause" in American jurisprudence, is one which is specifically phrased to subsume all debts of past or future origins. Such clauses are "carefully scrutinized and strictly construed." It has been settled in a long line of decisions that mortgages given to secure future advancements are valid and legal contracts, and the amounts named as consideration in said contracts do not limit the amount for which the mortgage may stand as security if from the four corners of the instrument the intent to secure future and other indebtedness can be gathered. (Prudential Bank v. Spouses Alviar, 2005) WHEN FORECLOSURE IS PROPER Foreclosure of REM presupposes that the debtor failed to pay his debt despite demand. The default of the debtor must first be established. Such default occurs when payment is not made after a valid demand, unless the contract between the parties carries with it a stipulation that demand is not necessary for default to arise. (Riano, 2016) ISSUE ON DEMAND TO PAY The issue of whether demand was made before the foreclosure was effected is essential. If demand was made and duly received by the respondents and the latter still did not pay, then they were already in default and foreclosure was proper. However, if demand was not

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made, then the loans had not yet become due and demandable. This meant that respondents had not defaulted in their payments and the foreclosure by petitioner was premature. Foreclosure is valid only when the debtor is in default in the payment of his obligation. (General Milling Corp. v. Spouses Ramos, 2011) ALTERNATIVE REMEDIES OF THE CREDITOR; SPLITTING SINGLE CAUSE OF ACTION The rule is that a mortgage-creditor has a single cause of action against a mortgagor-debtor, that is, to recover the debt. The mortgage-creditor has the option of either: (1) filing a personal action for collection of sum of money; (2) or instituting a real action to foreclose on the mortgage security. An election of the first bars recourse to the second, otherwise there would be multiplicity of suits in which the debtor would be tossed from one venue to another depending on the location of the mortgaged properties and the residence of the parties. (Flores v. Spouses Lindo, Jr. 2011) The Court has ruled that if a creditor is allowed to file his separate complaints simultaneously or successively, one to recover his credit and another to foreclose his mortgage, he will, in effect, be authorized plural redress for a single breach of contract at so much costs to the court and with so much vexation and oppressiveness to the debtor. (Riano, 2016) PACTUM COMMISSORIUM, DEFINED Pactum commissorium is "a stipulation empowering the creditor to appropriate the thing given as guaranty for the fulfillment of the obligation in the event the obligor fails to live up to his undertakings, without further formality, such as foreclosure proceedings, and a public sale." (Pena, 2008) The elements of pactum commissorium, which enable the mortgagee to acquire ownership of the mortgaged property without the need of any foreclosure proceedings, are: (1) There should be a property mortgaged by way of security for the payment of the principal obligation; and (2) There should be a stipulation for automatic appropriation by the creditor of the thing mortgaged in case of non-payment of the principal obligation within the stipulated period." (Spouses Edralin v. Philippine Veterans Bank2011) NOT A VALID AGREEMENT The intent to appropriate the property given as collateral in favor of the creditor appears to be evident, for the debtor is obliged to dispose of the collateral at the preagreed consideration amounting to practically the same amount as the loan. In effect, the creditor acquires the collateral in the event of non-payment of the loan. This is within the concept of pactum commissorium. Such stipulation is void. (Bustamante v. Spouses Rosel, 1999) THREE STAGES IN JUDICIAL FORECLOSURE OF MORTGAGE (1) Determination of the right to foreclose; (2) Foreclosure itself’; (3) Recovery of deficiency

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APPLICABILITY OF RULE 68 It only applies to judicial foreclosure of real estate mortgage. WHAT MUST BE ALLEGED IN THE COMPLAINT FOR FORECLOSURE The complaint shall set forth the following: (1) The date and due execution of the mortgage; (2) its assignments, if any; the names and residences of the mortgagor and the mortgagee; (3) a description of the mortgaged property; (4) a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, (5) the amount claimed to be unpaid thereon; and (6) the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. (Section 1, Rule 68) WHO ARE THE POSSIBLE DEFENDANTS? (1) Mortgage debtor – the one who borrowed money and mortgaged his property (2) Mortgagor or owner, if the debtor is another person – when person who owns the property mortgaged it to accommodate the loan of the debtor (3) All persons having or claiming an interest in the premises subordinate in the right to that of the holder of the mortgage PROCEDURE A foreclosure suit will proceed like an ordinary civil action insofar as they are not inconsistent with Rule 68. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall: (1)

(2) (3)

Ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and Shall render judgment for the sum so found due and Order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and

Note: The period given in the rule is not merely procedural requirement; it is a substantive right granted to the mortgage debtor as the last opportunity to pay the debt and save his mortgaged property from final disposition at the foreclosure sale. (Riano, 2016) (4)

That in default of such payment the property shall be sold at public auction to satisfy the judgment. (Section 2, Rule 68) EQUITY OF REDEMPTION, DEFINED Right of the defendant-mortgagor to extinguish the mortgage and retain the ownership of the property by paying the amount fixed in the decision of the Court within 90 to 120 days after the entry of judgment or even after the forecelosure sale but prior to its confirmation. (Limpin vs IAC, September 29, 1988)

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RIGHT OF REDEMPTION, DEFINED Right granted to the debtor-mortgagor, his successor-ininterest or any judicial creditor of the debtor-mortgagor, or any person having a lien in the property subsequent to its mortgage or deed of trust under which the property is sold, to redeem the property within one year from the registration of the sheriff’s certificate of foreclosure sale. (De Castro vs IAC, September 26, 1988) EQUITY OF REDEMPTION AND RIGHT OF REDEMPTION, DISTINGUISHED EQUITY OF REDEMPTION RIGHT OF REDEMPTION Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90 to 120 day period after entry of judgment or even after the foreclosure sale but prior to its confirmation

Right of the debtor, his successor in interest, or any judicial creditor of said debtor or any person having a lien on the property subsequent to the mortgage.

Period is 90-120 days after entry of judgment or even after foreclosure sale but prior to confirmation

Period is 1 year from date of registration of certificate of sale

Governed by Rule 68

Governed by Sec. 29- 31, Rule 39

EFFECT OF JUDGMENT It is considered a final adjudication of the case and, hence, subject to challenge by the aggrieved party by appeal or other post-judgment remedies. (Riano, 2016) FORCELOSURE JUDGMENT Judgment rendered in favor of plaintiff, stating that there is a valid cause of action and that the last chance to pay the obligation, interests, charges, etc within a specified period. SALE OF MORTGAGE PROPERTY; EFFECT When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. (Section 3, Rule 68) Note: Jurisprudence suggests that the motion for the sale of the mortgaged property is non-litigable and may be made ex parte pursuant to the judgment of the foreclosure. (Riano, 2016) EFFECT OF CONFIRMATION OF THE SALE Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. (Section 3, Rule 68) CONFIRMATION OF SALE, DEFINED It operates to divest the rights in the property of all the parties in the action and to vest rights in the purchaser, subject to the right of redemption as may be allowed by the law.

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EFFECT OF FINALITY OF THE ORDER OF CONFIRMATION Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. (Section 3, Rule 68) The order of confirmation is appealable, and if not appealed from within the period for appeal, such order becomes final. (Riano, 2016) DISPOSITION OF PROCEEDS OF SALE The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. (Section 4, Rule 68) HOW SALE TO PROCEED IN CASE THE DEBT IS NOT ALL DUE If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. (Section 5, Rule 68) IF PROPERTY CANNOT BE SOLD WITHOUT PREJUDICE TO PARTIES But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. (Id.) REGISTRATION OF THE SALE A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser. (Section 7, Rule 68)

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DEFICIENCY JUDGMENT It is a judgment rendered by the court upon motion and showing that the proceeds from the sale of the property is not sufficient for the payment of judgment debt. IF THERE IS A BALANCE DUE TO PLAINTIFF AFTER APPLYING PROCEEDS OF THE SALE

IF THERE IS NO BALANCE DUE

The court, upon motion, Otherwise, the plaintiff shall render judgment shall be entitled to against the defendant for execution at such time as any such balance for the balance remaining which, by the record of the becomes due under the case, he may be personally terms of the original liable to the plaintiff, upon contract, which time shall which execution may issue be stated in the judgment. immediately if the balance (Id.) is all due at the time of the rendition of the judgment. (Section 6, Rule 68) EFFECT OF DEFICIENCY JUDGMENT It is in itself, a judgment, hence also appealable. (Riano, 2016) Moreover, no independent action need be filed to recover then deficiency from the defendant. The deficiency judgment shall be rendered upon motion of the mortgagee. (Id.) WHEN MORTGAGOR IS NOT THE DEBTOR It has been suggested that the mortgagor, who is not the debtor and who merely executed the mortgage to secure the principal debtor’s obligation, is not liable for the deficiency unless he assumed liability for the same in the contract. (Philippine Trust Company vs. Echaus, 1929) WHEN THERE 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. (Riano, 2016) A mortgagee who exercises the power of sale contained in a mortgage is considered a custodian of the fund and, being bound to apply it properly, is liable to the persons entitled thereto if he fails to do so. And even though the mortgagee is not strictly considered a trustee in a purely equitable sense, but as far as concerns the unconsumed balance, the mortgagee is deemed a trustee for the mortgagor or owner of the equity of redemption. Thus it has been held that if the mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply give the mortgagor a cause of action to recover such surplus. (Suico vs. PNB, 2007) FORCELOSURE JUDGMENT FROM DEFICIENCY JUDGMENT, DISTINGUISHED FORECLOSURE JUDGMENT

DEFICIENCY JUDGMENT

Judgment Quasi-in rem

Judgment in personam

Directed against the rights of a persons on the property itself

Directed against the debtor-mortgagor

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personally INSTANCES WHEN IT IS IMPROPER FOR THE COURT TO RENDER A DEFICIENCY JUDGMENT (1) Where the mortgagor mortgaged his property to secure the debt of another without assuming personal liability of such debt; (2) Where the mortgagor is a non-resident who failed to submit himself to the jurisdiction of the court; no personal judgment for deficiency can be rendered against him; (3) Where the mortgagor dies after the rendition of the judgment of foreclosure. TWO TYPES OF FORECLOSURE OF MORTGAGE 1. JUDICIAL FORCELOSURE Mortgagee files the case before the court; governed by Rule 68 2. EXTRA-JUDICIAL FORECLOSURE There is no court case but the procedure followed is that of Act 3135 Judicial and Extra-Judicial Foreclosure, distinguished JUDICIAL FORECLOSURE

EXTRA-JUDICIAL FORECLOSURE

Requires court intervention Only equity of redemption Governed by the Rules of Court

Court intervention not necessary

Decisions are appealable Order of the Court cuts off all rights of the parties impleaded Period of redemption starts from the finality of the judgment until order of confirmation No need for special power of attorney in the contract of mortgage Recovery of deficiency can be done by mere motion

Right of redemption exists Governed by Act 3135 Not appealable; immediately executory Foreclosure does not cut off the rights of all the parties involved Period to redeem starts from the date of registration of the certificate of sale Special power of attorney in favor of the mortgage is needed in the contract Recovery of deficiency is through an independent action

The resort to extra-judicial foreclosure must always be provided in the contract. The mortgage contract must contain a Special Power of Attorney constituting the mortgagee as the attorney-in-fact of the mortgagor to resort to extra-judicial foreclosure. If none exists, then mortgagee has only one option – judicial foreclosure.

I.

Partition (Rule 69)

Definition The Civil Code of the Philippines defines partition as the separation, division and assignment of a thing held in common among those to whom it may belong. (Article 1079) Partition is the division between two or more persons of real or personal property, owned in common, by setting

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apart their respective interests so that they may enjoy and possess those in severalty, resulting in the partial or total extinguishment of co-ownership. (Leoveras vs. Valdez, 2011) PARTITION OF REAL ESTATE It is a judicial controversy between persons, who being co-owners thereof; seek to secure a division for partition for themselves of the common property, giving to each one of them the part corresponding to each. EXISTENCE OF CO-OWNERSHIP IN PARTITION Partition presupposes the existence of a co-ownership over a property between two or more persons. Thus, it was ruled that a division of property cannot be ordered by the court unless the existence of co-ownership is first established, and that an action for partition will not lie if the claimant has no rightful interest in the property. (Co Giuk Lun vs. Co., 2011) INSTANCES WHEN CO-OWNER MAY NOT DEMAND PARTITION AT ANY TIME 1. There is an agreement among the co-owners to keep the property undivided for a certain period of time but not exceeding 10 years. This term may, however, be extended by a new agreement. (Art. 494, Civil Code) 2. When partition ism prohibited by the donor or testator for a period not exceeding 20 years; 3. When partition is not prohibited by law; 4. When the property is not subject to a physical division and to do so would render it unserviceable for the use for which it is intended; 5. When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. LEGAL EFFECT OF PARTITION It is to terminate the co-ownership and consequently, to make the previous co-owners the absolute and exclusive owner of the share allotted to him. WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS All co-owners must be impleaded; they are indispensable parties; hence, when one is left out, the judgment will not become final. Once left out, a co-owner may intervene whether or not there is a judgment rendered. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION 1. Nature and extent of his title 2. Adequate description of the real estate sought to be partitioned 3. Joining of Defendants – All other persons interested in the property (Sec. 1, Rule 69) 4. 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) Note: 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. (Riano, 2016)

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WHEN ALLEGATIONS IN COMPLAINT NOT FOR PARTITION When the allegations in the complaint allege that the plaintiff asserts exclusive ownership of the property sought to be partitioned, the nature of the action is not one for partition. It is an action for the recovery of property. (De la Cruz vs. Court of Appeals, 1999) TWO STAGES IN PARTITION: 1. Determination of whether or not a co-ownership in fact exists and a partition is proper and may be made by voluntary agreement of all parties interested in the property. Note: The determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. Such order of partition is appealable. 2. Actual partitioning of the subject property. Note: The order or decision is appealable. Commences when the parties are unable to agree upon the partition ordered by the court; shall be effected then by the court with the assistance of not more than three commissioners. CONDITION FOR ACTION TO LIE The settlement of the issue on ownership is the first stage in an action for partition and the action will not lie if the claimant has no rightful interest in the property in dispute. (Garingan vs. Garingan, 2005) ORDER OF PARTITION 1. During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed, thus may be allowed. If the court finds the facts in order and that there is a right to demand, it will issue an order of partition. (Riano, 2016) 2.

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. (Section 2, Rule 69)

REMEDY AGAINST FINAL ORDER OF THE DECREE A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (Id.) MODES OF PARTITION 1. By agreement of the parties; 2. By judicial proceedings under the Rules of Court when the parties cannot reach an agreement. The right of the co-owners to opt for an agreement of partition in lieu of a judicial partition is recognized by the Rules of Court. If the co-owners cannot agree on the partition of the property, the only recourse is the filing of an action for partition. (Riano, 2016) PARTITION BY AGREEMENT IF THEY AGREE 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

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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. PARTITION BY AGREEMENT IF THEY DID NOT AGREE There always exists the possibility that the co-owners are unable to agree upon the partition. If they cannot partition the property among themselves, the next stage in the action will follow, and this stage is the appointment of commissioners. (Riano, 2016) PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. (Section 3, Rule 69) The appointment of commissioners, which is a mandatory under the circumstances, presupposes that the parties cannot agree upon the partition among themselves. (Riano, 2016) Note: Observe that the provision authorizes the commissioners merely to make or effect the partition. Nothing in the provision grants them the authority to adjudicate on questions of title or ownership of property. (Id.) OATH AND DUTIES OF COMMISSIONERS Before making such partition, the commissioners shall: (1) Take and subscribe an oath that they will faithfully perform their duties as commissioners; (2) Which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall: (1) View and examine the real estate, after due notice to the parties to attend at such view and examination, and (2) 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 (3) 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. (Section 4, Rule 68) WHEN DIVISION WOULD BE PREJUDICIAL 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: (1) Order it assigned to one of the parties willing to take the same; (2) Provided he pays to the other parties such amounts as the commissioners deem equitable. Note: Unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and

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within such time as the court may determine. (Section 5, Rule 69)

the payment or payments, free from the claims of any of the parties to the action. (Section 11, Rule 69)

REPORT OF THE COMMISSIONERS The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire.

RECORDING OF THE JUDGMENT 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. (Id.)

PROCEEDINGS NOT BINDING UNTIL CONFIRMED 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. (Section 6, Rule 69) ACTION OF THE COURT UPON COMMISSIONERS’ REPORT Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing: (1) accept the report and render judgment in accordance therewith; (2) or, for cause shown, recommit the same to the commissioners for further report of facts; (3) or set aside the report and appoint new commissioners; (4) or accept the report in part and reject it in part; (5) And may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. (Section 7, Rule 69) JUDGMENT AND ITS EFFECTS 1. If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. 2.

3.

If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action.

NEITHER PARAMOUNT RIGHTS NOR AMICABLE PARTITION AFFECTED BY THIS RULE Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made; nor 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. Note: In partition, no rights of a third person over the property are affected because there is no transmission of rights; there is merely a designation and segregation of shares PARTITION OF PERSONAL PROPERTY The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. (Section 13, Rule 69) Note: Rules may also apply to personal properties. PRESCRIPTION OF ACTION Action for partition is unprescriptible for a long as the coowners expressly or impliedly recognize the coownership. However, if a co-owner repudiates the coownership and makes known such repudiation to the other co-owners, then partition is no longer the proper remedy of the aggrieved owner. He should file accion reivindicatioria (Roque vs IAC, 1988). 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 coownership (Cordova v. Cordova (1958) in which case, acquisitive prescription may set in.

J. Forcible Entry and Unlawful Detainer THREE POSSIBLE ACTIONS TO BE FILED IN COURT GOVERNING REAL PROPERTIES 1. Accion Reinvindicatoria (Recovery of Ownership) 2. Accion Publiciana (Recovery of Possession) 3. Accion Interdictal (Forcible entry (detentacion) or unlawful detainer (des halicio)

If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making

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ACCION INTERDICTAL

ACCION PUBLICIANA

ACCION REINVIDICATORIA

Summary action for the recovery of physical possession where the dispossession has not lasted for more than 1 year

Plenary action for the recovery of real right of possession when the dispossession has lasted for more than 1 year

Action for the recovery of ownership plus possession

Jurisdiction: MTC regardless of value of property

RTC: Value exceeds P20K or P50K in Metro Manila

RTC: Value exceeds P20K or P50K in Metro Manila

MTC: if it does not exceed the above amounts

MTC: if it does not exceed such amounts

FORCIBLE ENTRY, DEFINED Consists in depriving a person of the possession of the land or building for a period of time not exceeding 1 year by force, intimidation, strategy, threat or stealth (Tenerio vs Gamboa, 81 Phil 55) The sole issue in forcible entry is who has a better right to possess the property involved. A non-registered owner can file an action since the sole issue is who has the better right to possess and not as to who owns the property The 1 year period begins from the time of the entry UNLAWFUL DETAINER, DEFINED Consists in the unlawful withholding by a person from another, for not more than one year, of the possession of any land or building after the expiration or termination of the right to hold such possession by virtue of an express or implied contract (Torres vs Ocampo, 80 Phil 36) FORCIBLE ENTRY AND UNLAWFUL DETAINER, DISTINGUISHED FORCIBLE ENTRY UNLAWFUL DETAINER Possession by the defendant is unlawful from the beginning as he acquires possession by force, intimidation, threat, strategy or steath

Possession is inceptively lawful but it becomes illegal by reason of the termination of the right

No prior demand is necessary

Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract

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Plaintiff must prove that he was in prior possession

No need of prior possession

1 year period reckoned from the date of actual entry

1 year period reckoned from the date of the last demand

ACCION INTERDICTAL AND ACCION PUBLICIANA, DISTINGUISHED ACCION INTERDICTAL

ACCION PUBLICIANA

Under the Summary Proceeding; purpose of which is the recovery of possession de facto

Ordinary civil action the purpose of which is to recover the right of possession (possession de jure)

Exclusive jurisdiction of the MTC

RTC if it exceeds P20K; if it is less, then MTC

Period to file is 1 year from unlawful deprivation or unlawful withholding of possession

May be filed at any time before ownership or other real rights of the real property involved are lost by acquisitive prescription

Causes are force, intimidation, strategy, threat or stealth (FISTS)

Any other cause of unlawful dispossession other than FISTS, or even FISTS but after the lapse of one year

Immediate execution is governed by Rule 70 Section 19

Immediate execution or execution pending appeal is governed by Rule 39 Section 2 (there must be a good reason)

HOW TO DETERMINE JURISDICTION IN ACCION PULICIANA AND ACCION REINVINDICATORIA 1. RTC has jurisdiction where the assessed value of the property exceeds P20,000 or, in Metro Manila, P50,000; 2. MTC has jurisdiction if the assessed value does not exceed said amounts. (Secs. 19, 33,BP 129, as amended) WHO MAY INSTITUTE THE ACTION AND WHEN; a. In Forcible Entry A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth. (Section 1, Rule 70) Reckoning point: It is counted from the date of entry or taking of possession except in the case of stealth or strategy in which it is from the time the plaintiff learned of the entry. b. In Unlawful Detainer Lessor, vendor, vendee, or other person against whom any land or building is unlawfully withheld; his legal representatives or assigns. (Id.)

c.

Period of Filing

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Within one year after such unlawful deprivation or withholding of possession. (Id.) AGAINST WHOM THE ACTION MAY BE MAINTAINED A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. (Section 1, Rule 70) PLEADINGS ALLOWED 1. Complaint; 2. Compulsory counterclaim pleaded in the answer; 3. Cross-claim pleaded in the answer; 4. Respective answers. (Section 4, Rule 70) Note: Pleadings must be verified. (Id) PROHIBITED PLEADINGS The following petitions, motions, or pleadings shall not be allowed: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; Motion for a bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits or any other paper; Memoranda; Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Motion to declare the defendant in default; Dilatory motions for postponement; Reply; Third-party complaints; Interventions.

AFFIDAVITS REQUIRED The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. (Section 14, Rule 70) IF VIOLATED THIS REQUIREMENT A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. (Id.)

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WHAT MUST BE ALLEGED IN THE COMPLAINTS The following are the allegations indispensable for both actions in order for the first level courts to acquire jurisdiction: FORCIBLE ENTRY UNLAWFUL DETAINER Initially, the 1. The plaintiff had prior 1. possession of physical possession of property by the the property; defendant was by 2. That the defendant contract with or by deprived him of such tolerance of the possession by means plaintiff; of force, intimidation, such threats, strategy, or 2. Eventually, possession became stealth. (Abad vs. illegal upon notice by Farrales) plaintiff to defendant 3. Filed within 1 year of the termination of from dispossession. the latter’s right of possession; Note: These allegations are 3. Thereafter, the not required in an unlawful defendant remained in detainer case. possession of the property and deprived the plaintiff of the enjoyment thereof; and 4. Within 1 year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment. WHEN THE COMPLAINT FAILS TO AVER FACTS HOW ENTRY WAS EFFECTED When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or how and when dispossession started, the remedy should either be an accion publiciana or accion reivindicatoria. (Jose vs. Alfiuerto, 2012) It is necessary that the complaint must sufficiently show such a statement of facts as to bring the party clearly within the class of cases for which the statutes provide a remedy, without resort to parol testimony, as these proceedings are summary in nature. (Riano, 2016) POSSESSION AS THE ISSUE Possession in the eyes of the law does not mean that a man has to have these feet on every square meter of the ground before he is deemed to be in possession. (De la Rosa vs. Carlos) MEANING OF PRIOR PHYSICAL POSSESSION IN FORCIBLE ENTRY CASES It did not refer to a literal concept of physical possession. It is sufficient that petitioner was able to subject the property to the action of his will. (Mangaser vs. Ugay, 2014) RATIONALE BEHIND THE CONCEPT It would create an absurd situation. It would be putting premium in favor of land intruders against Torrens title holder, who spent months, or even years, in order to

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register their land, and who religiously paid real property taxes thereon. As such, the Torrens title holders would have to resort to ordinary civil actions thereby defeating the very purpose of the summary procedure of an action for forcible entry. (Id.) ACTION ON THE COMPLAINT The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto: 1. Dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. 2. If no ground for dismissal is found, it shall forthwith issue summons. (Section 5, Rule 70) WHEN DEFENDANT OCCUPIES PREMISES BY MERE TOLERANCE 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 is a summary action for ejectment is the proper remedy against him. As a consequence, the possessor by tolerance is liable to pay rentals, not from the time the premises were occupied, but from the time the demand to vacate was made up to the time that the premises are fully vacated. WHEN THE RULE ON TOLERANCE DOES NOT APPLY It does not apply where there was forcible entry at the start. Common reason then suggests that if the possession was illegal at the inception and not merely tolerated, the defendant’s entry into the land was effected clandestinely, or one made without the knowledge of the owners. It is, therefore, a possession by stealth which is forcible entry. (Riano, 2016)

Special Civil Actions

The requirement for a demand implies that the mere failure of the occupant to pay rentals or to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand to vacate that vests upon the lessor a cause of action. (Larano vs. Spouses Calendacion) DEMAND MUST BE TWO-FOLD: (1) Demand to pay or (2) Demand to vacate. comply with the conditions of the lease contract; AND Where the suit is predicated upon the defendant’s noncompliance with the conditions of the lease contract, the proper demand should be to comply and to vacate and not to comply or vacate. The latter type of demand gives rise to an action for specific performance and not unlawful detainer. (Cetus Development vs. Court of Appeals) FORM OF DEMAND 1. Written notice of such demand upon the person found on the premises. 2. Posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings. 3. May be verbal provided that sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. (Jakihaca vs. Aquino) WHEN DEMAND NOT NECESSARY (1) There is a stipulation dispensing with a demand; (2) The ground for the suit is based on the expiration of lease. (Riano, 2016)

EFFECT OF PENDENCY OF AN ACTION INVOLVING ONWERSHIP ON THE ACTION FOR FORCIBLE ENTRY AND UNLAWFUL DETAINER It does not bar the filing of an ejectment suit nor suspend the proceedings of one already instituted. The underlying reason is to prevent the defendant from trifling with summary nature of an ejectment suit by the simple expedient of asserting ownership over the disputed property. (Tecson vs. Guttierez)

SUMMARY PROCEDURE GENERAL RULE: All actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder provided. EXCEPTION: Except in cases covered by the (1) agricultural tenancy laws or (2) when the law otherwise expressly provides.

CASES WHICH DO NOT BAR AN ACTION FOR FORCIBLE ENTRY OR UNLAWFUL DETAINER 1. Injunction suits 2. Accion Publiciana 3. Writ of Possession Case 4. Action for Quieting of Title 5. Suits for Specific Performance with Damages 6. Action for Reformation of Instrument 7. Action for Reconveyance of Property or “Accion revindicatoria” 8. Suits for annulment of sale or title or document affecting property (Riano, 2016)

PLEADINGS ALLOWED The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. (Section 4, Rule 70)

CONCEPT OF DEMAND IN UNLAWUL DETAINER CASE Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. (Section 2, Rule 70)

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ANSWER Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. Crossclaims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded. (Section 6, Rule 70)

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EFFECT OF FAILURE TO ANSWER Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive or otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9 if there are two or more defendants. (Section 7, Rule 70) DEFENSE OF TENANCY Jurisdiction over the subject matter is determined by the allegations in the complaint. Hence, the defenses in the answer do not determine jurisdiction. (Marino, Jr. vs. Gamilla) While it is true that the jurisdiction of the court in a suit for ejectment or forcible entry is determined by the allegations in the complaint, yet where tenancy is averred as a defense and upon hearing, it is shown to be the real issue, the court should dismiss the case for want of jurisdiction. (Ignacio vs. CFI Bulacan) PRELIMINARY CONFERENCE Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. (Section 8, Rule 70) RECORD OF PRELIMINARY CONFERENCE Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; 2. The stipulations or admissions entered into by the parties; 3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; 4. A clear specification of material facts which remain controverted; and

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5. Such other matters intended to expedite the disposition of the case. (Section 9, Rule 70) SUBMISSION OF AFFIDAVITS AND POSITION PAPERS Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. (Section 10, Rule 70) PERIOD FOR RENDITION OF JUDGMENT GENERAL RULE: Within thirty (30) days after receipt of the affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. (Section 11, Rule 70) EXCEPTION: However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. (Id) Note: Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or the expiration of the period for filing the same. Also, the court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. (Id.) REFERRAL FOR CONCILIATION Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with. (Section 12, Rule 70) PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (Section 15, Rule 70) PRELIMINARY MANDATORY INJUNCTION Possessor may present a motion for issuance of preliminary mandatory injunction in the action for forcible entry or unlawful detainer within 5 days from filing of complaint to restore him in his possession. Court shall decide the motion within 30 days from filing. (Sec. 30) Preliminary mandatory injunction shall be available: (1) At the start of the action; (Sec. 15) (2) On appeal to the RTC upon motion of plaintiff within 10 days from perfection of appeal. (Sec. 20

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The injunction on appeal is to restore to plaintiff in possession: (1) If the court is satisfied that the defendant’s appeal is frivolous or dilatory; or (2) That the appeal of plaintiff is prima facie meritorious. (Sec. 20) Note: MTC can also issue a preliminary mandatory injunction in an unlawful detainer case. (Day v. RTC of Zamboanga, 1990) RESOLVING DEFENSE OF OWNERSHIP When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (Section 16, Rule 70) Generally, the court will only determine the issue of possession. But if the issue on ownership is intertwined with the issue of possession, the court may rule on ownership but the declaration of ownership is merely prima facie. JUDGMENT, IF ALLEGATIONS ARE TRUE If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the: (1) Restitution of the premises, (2) The sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, (3) Attorney’s fees and costs. JUDGMENT, IF ALLEGATIONS NOT TRUE If it finds that said allegations are not true, it shall render judgment for the defendant to: (1) Recover his costs. (2) If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. (Section 17, Rule 70) While damages seem to be recoverable, these are limited only to: (1) Attorney’s fees (2) Costs (3) Unpaid Rentals and (4) Reasonable Compensation Note: Other damages can be claimed in another case (Reyes vs CA, 38 SCRA 138, Baen vs CA, 125 SCRA 634) JUDGMENT CONCLUSIVE ONLY ON POSSESSION; NOT CONCLUSIVE IN ACTIONS INVOLVING TITLE OR OWNERSHIP The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building. (Section 18, Rule 70)

Special Civil Actions

same on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court. (Id.) HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT GENERAL RULE: If judgment is rendered against the defendant, execution shall issue immediately upon motion. (Section 19, Rule 70) EXCEPTION: The defendant must take the following steps to stay the execution of the judgment: (1) Perfect an appeal; (2) File a supersedeas bond to pay the rents, damages and costs accruing down to the time of the judgment appealed from; and (3) Deposit periodically with the Regional Trial Court, during the pendency of the appeal, the adjugdjed amount of rent under the contract or if there be no contract, the reasonable value of the use and occupation of the premises. (Bugarin vs. People) All the above requisites must concur. Thus even if the defendant had appealed and filed a supersedeas bond, but failed to pay the accruing rentals, the appellate court could, upon motion of the plaintiff, with notice to the defendant, and upon proof of such failure, order the immediate execution of the appealed decision without prejudice to the appeal taking its course. Such deposit, like the supersedeas bonds, is a mandatory requirement; hence, if it is not complied with, execution will issue as a matter of right. (Antonio vs. Geronimo) SUPERSEDEAS BOND Bond which will answer for all the amount due to the plaintiff up to the date of the judgment. Should be deposited within 15 days together with the notice of appeal. Make periodical deposits of the rents falling due during the pendency of the appeal every month. PRELIMINARY MANDATORY INJUNCTION IN CASE OF APPEAL Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. (Section 20, Rule 70) IMMEDIATE EXECUTION ON APPEAL TO COURT OF APPEALS OR SUPREME COURT The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. (Section 21, Rule 70)

REMEDY FOR JUDGMENT OR FINAL ORDER The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the

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Special Civil Actions

DIFFERENTIATE UNLAWFUL DETAINER FROM FORCIBLE ENTRY UNLAWFUL DETAINER The possession of the defendant is unlawful from the beginning; issue is which party has prior de facto possession; The law does not require previous demand for the defendant to vacate; The plaintiff must prove that he was in prior physical possession of the premises until he was deprived by the defendant; and The one-year period is generally counted from the date of actual entry on the property.

FORCIBLE ENTRY The possession of the defendant is lawful from the beginning becomes illegal by reason of the expiration or termination of his right to the possession of the property; Plaintiff must first make such demand which is jurisdictional in nature; The plaintiff need not have been in prior physical possession;

The one-year period is counted from the date of last demand

RULES IN THE EXECUTION OF JUDGMENTS IN EJECTMENT CASES A judgment on a forcible entry and detainer action is immediately executory and the court’s duty to order the execution is practically ministerial. This rule applies when the judgment is against the defendant. It does not apply when it is the defendant that prevails. PERSONS BOUND BY THE JUDGMENT IN EJECTMENT CASES GENERAL RULE: The judgment in an ejectment case is binding only upon the parties properly impleaded and given opportunity to be heard. This is because an ejectment suit is an action in personam. EXCEPTION: The judgment becomes binding on anyone who has not been impleaded if he or she is a: (1) Tresspasser, squatter or agent of the defendant fraudulently occupying the property to frustrate the judgment; (2) Guest or occupant of the premises with the permission of the defendant; (3) A transferee pendente lite; (4) Sublessee; (5) Co-lessee; and (6) Member of the family, relative or privy of the defendant. (Sunfloiwer Neighborhood Association vs. Court of Appeals)

It is a disregard of or disobedience with the rules and orders of a judicial body, or an interruption of its proceedings by disorderly behavior, or insolent language, in its presence or so near thereto, as to disturb the proceedings or to impair the respect due to such body. The power to punish contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and the enforcement of judgments, orders and mandates of the court and consequently, to the administration of justice Rule 135 (5) – inherent power of courts – to compel obedience to its orders, to maintain its dignity while proceedings are going on; violation of such and a person can be held in contempt KINDS OF CONTEMPT AS TO MANNER OF COMMISSION (1) Direct (2) Indirect AS TO NATURE (1) Criminal (2) Civil DUAL FUNCTION OF CONTEMPT PROCEEDINGS: (1) Vindication of public interest by punishment of contemptuous conduct. (2) Coercion to compel contemnor to do what the law requires him to uphold the power of the Court and to secure the rights of the parties to a suit awarded by the Court. DIRECT CONTEMPT AND INDIRECT CONTEMPT, DISTSINGUISHED DIRECT CONTEMPT (SECTION 1)

INDIRECT CONTEMPT (SECTION 3)

Committed in the presence of or so near the court

Not committed within the presence of the court

Summary in nature

There is a charge and a hearing

Punishment: If before RTC – fine not exceeding P2K or imprisonment not exceeding 10 days or both; If before MTC – fine not exceeding P200 or imprisonment not exceeding 1 day or both

Punishment: If before RTC – fine not exceeding P30K or imprisonment not exceeding 6 months or both; If before MTC – fine not exceeding P5K or imprisonment not exceeding 1 month or both

Remedy is prohibition

Remedy is appeal

certiorari

or

Otherwise known as contempt in facie curiae

Otherwise known constructive contempt

as

K. Contempt (Rule 71) DEFINITION In simple terms, it is defiance of the authority of the court.

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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. INDIRECT CONTEMPT Constructive contempt; one committed out or not in the presence of the court. It is an act done in a distance which tends to belittle, degrade, obstruct, interrupts, or embarrass the court and justice, as in refusing to obey its order or lawful process and can be punished only after hearing.

is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. (Lorenzo Shipping vs. DMAP, 2011) REMEDY OF A PERSON ADJUDGED IN DIRECT CONTEMPT The person adjudged in direct contempt by any court may not appeal therefrom, but may: (1) Avail himself of the remedies of certiorari or prohibition. (2) The execution of the judgment shall be suspended pending resolution of such petition, provided such person: a. Files a bond fixed by the court which rendered the judgment; and b. Conditioned that he will abide by and perform the judgment should the petition be decided against him. (Section 2, Rule 71)

CRIMINAL CONTEMPT AND CIVIL CONTEMPT, DISTINGUISHED CRIMINAL CONTEMPT

CIVIL CONTEMPT

Punitive in nature; punishment

Compensatory or remedial

Intent is a necessary element

Intent is immaterial

State is the real prosecutor

Aggrieved party or his successor or someone who has pecuniary interest in the right to be protected

The defendant is presumed innocent and the burden is on the prosecution to prove charges beyond reasonable doubt

There is no presumption, although the burden of proof is on the complainant, and while the proof need not be beyond reasonable doubt, it must amount to more than mere preponderance of evidence

PENALTIES OFFENSE If RTC or a court of equivalent or higher rank If lower court:

CIVIL CONTEMPT, DEFINED Consists in the failure to do something ordered to be done by a court or judge in a civil case for the benefit of the opposing party therein. CRIMINAL CONTEMPT, DEFINED Consists in the conduct that is directed against the authority and dignity of the court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in doing a forbidden act. NO FORMAL PROCEEDING REQUIRED, SUMMARY PROCEEDINGS The court may proceed, upon its own knowledge of the facts without further proof and without issue or trial in any form, to punish a contempt committed directly under its eye or within its view. BUT there must be adequate facts to support a summary order for contempt in the presence of the court. The exercise of the summary power to imprison for contempt

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PENALTY Fine not exceeding P2,000 and/or Imprisonment not exceeding 10 days or both Fine not exceeding P200 and/or Imprisonment not exceeding 1 day or both (Section 1, Rule 71)

SPECIFIC ACTS PUNISHABLE AS INDIRECT CONTEMPT A person guilty of the following acts may be punished for indirect contempt: (1) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (2) Disobedience or resistance to a lawful writ, process, order, or judgment of a court (3) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; (4) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (5) Assuming to be an attorney or an officer of a court, and acting as such without authority; (6) Failure to obey a subpoena duly served (7) 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. (Riano, 2016) CLEAR AND PRESENT DANGER RULE IN CONTEMPT It means that the evil consequence of the comment must be extremely serious and the degree of imminence extremely high before an utterance can be punished. There must be exist a clear and present danger that the utterance will harm the administration of justice. (Marantan vs. Diokno, 2014) REMEDY OF A PERSON ADJUDGED IN INDIRECT CONTEMPT The judgment or final order of a court in a case of indirect contempt may be:

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a.

Appealed to the proper court as in criminal cases. (Section 11, Rule 71)

Note: But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order. (Id.) 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 Ent. Inc. v. SEC, 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 for the purpose only of determining the character of the punishment to be administered. (Santiago v. Anunciacion, 1990) PENALTIES (SEC 7, RULE 71) OFFENSE PENALTY Against RTC, or Fine not exceeding P30,000 court of equivalent and/or Imprisonment not or higher rank exceeding 6 month, or both Committed against Fine not exceeding P500, and/or lower court Imprisonment not exceeding 1 month, or both Contempt consists Offender may also be ordered to in violation of a writ make complete restitution to the of injunction, TRO, party injured by such violation of or status quo order the property involved or such amount as may be alleged and proved. Committed against a Penalty shall depend upon the person or entity provisions of the law which exercising authorizes penalty for contempt quasijudicial against such persons or entities functions (Sec. 12, Rule 71) WHERE CHARGE TO BE FILED IF AGAINST RTC Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. (Section 5, Rule 71) WHERE CHARGE TO BE FILED IF COMMITTED AGAINST LOWER COURT Where such contempt has been committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as provided in section 2 of this Rule. (Id) HEARING; RELEASE ON BAIL If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer. (Section 6, Rule 71)

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Special Civil Actions

HOW CONTEMPT PROCEEDINGS ARE COMMENCED 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. 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. (Section 4, Rule 71) Summary of Procedure for Indirect Contempt PROCEDURE FOR INDIRECT CONTEMPT Who Court Motu Party Initiates Propio How it is initiated

Where it is initiated

Hearing and Bail Appeal Execution of Judgment

By order or any written charge requiring respondent to show cause why he should not be held in contempt

By a verified petition with supporting particulars and certified true copy of documents or papers involved and full compliance with the requirements for filing initiatory pleadings in ordinary civil actions Where the contempt is directed against the RTC or equivalent or higher rank; When the contempt is directed against a lower court: RTC of the place where the lower court is sitting or In the same lower court subject to appeal to the higher court If hearing is not immediately conducted, respondent may be released upon the filing of the bond in the amount fixed by the court Appeal may be taken in proper courts as in criminal cases Execution of judgment shall not be suspended even by appeal unless bond if filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal

WHEN IMPRISONMENT SHALL BE IMPOSED When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. (Section 8, Rule 71) PROCEEDING WHEN PARTY RELEASED ON BAIL FAILS TO ANSWER When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order of arrest or may order the bond for his appearance

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to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases. (Section 9, Rule 71)

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Umbac for contempt. The Ad-Hoc Committee of said legislative body has even less basis to claim that it can exercise these powers. (Negros Oriental II Electric Cooperative vs. Sangguniang Panlungsod)

COURT MAY RELEASE RESPONDENT The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his release. (Section 10, Rule 71) CONTEMPT AGAINST QUASI-JUDICIAL BODIES Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. (Section 12, Rule 71) CRITICISM OF COURTS The power to punish contempt does not, however, render the courts impenetrable to public scrutiny nor does it place them beyond the scope of legitimate criticism. However, it shall be bona fide, and shall not spill over the walls of decency and propriety. (Garcia vs. Manrique, 2012) CONTEMPT IN RELATION TO EXECUTION OF JUDGMENTS When the subject of execution is a special judgment which directs the performance of an act other than the payment of money, sale or delivery of property or those other than the payment of money, sale or delivery of property, the judgment can be complied with only by the judgment ibligor or officer so directed by the judgment and not anyone else. This kind of judgment, like in mandamus, is specifically directed to the person required to obey the same. Hence, if disobeyed, shall be punished for contempt. (Riano, 2016) CONTEMPT POWERS OF THE LEGISLATURE; LEGISLATIVE INVESTIGATIONS While recognizing the congressional power to conduct legislative inquiries, also provides for the following limitations to the power: (1) It must be exercised in aid of legislation; (2) It must be in accordance with the duly published rules of procedure; and (3) The rights of persons appearing in or affected by such inquiries shall be respected. (Riano, 2016) CONTEMPT POWER OF LOCAL LEGISLATIVE BODIES There being no express provision in the LGC explicitly granting local legislative bodies, the power to issue compulsory process and the power to punish for contempt, the Sangguniang Panlungsod of Dumaguete is devoid of power to punish the petitioners Torres and

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Special Proceedings

SPECIAL PROCEEDING A Special Proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (Rule 1, Section 3 (c))

SPECIAL PROCEEDINGS

SUBJECT MATTER OF SPECIAL PROCEEDING 1. Settlement of estate of deceased persons 2. Escheat 3. Guardianship and custody of children 4. Trustees 5. Adoption 6. Rescission and revocation of adoption 7. Hospitalization of insane persons 8. Habeas Corpus 9. Change of name 10. Voluntary dissolution of corporations 11. Judicial approval of voluntary recognition of minor natural children 12. Constitution of Family Home* 13. Declaration of absence and death 14. Cancellation or correction of entries in the civil registry *1st Note: Constitution of Family Home is already obsolete. Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code are constituted as such by operation of law. 2nd Note: The list in Rule 72, Section 1 is not exclusive. A petition for liquidation of an insolvent corporation should be classified a special proceeding because it only seeks a declaration of the corporation's state of insolvency and the concomitant right of creditors and the order of payment of their claims in the disposition of the corporation's assets. (Pacific Banking Corporation Employees’ Organization v. CA, 242 SCRA 493) 3rd Note: There are cases where due to another governing law, the rules on special proceedings do not apply. Article 41 of the Family Code provides that for the purpose of contracting the subsequent marriage in case of an absentee spouse, the spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Republic v. CA, Madrona and Jomoc, 458 SCRA 200) DISTINCTIONS BETWEEN ORDINARY CIVIL ACTION AND SPECIAL PROCEEDINGS

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Ordinary Civil Action

Special Proceeding

1. An affirmative relief for injury arising from a party’s wrongful act or omission is prayed for. Thus, cause of action is necessary.

1. No cause of action needed. What is necessary is the establishment of a status, right, or a particular fact.

2. Initiated by filing a Complaint. The

2. Initiated by filing a Petition. The Defendant

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Defendant Answer.

files

Special Proceedings

an

files an Opposition. ●

3. Parties involved are adversaries.

3. Parties are not adversaries, except when in the course of the proceedings, there are oppositors.

4. Nature is in personam: Jurisdiction is acquired through service of summons or voluntary appearance

4. Nature is in rem: Jurisdiction is acquired through publication [binding against the whole world]

5. Summons required for acquisition of jurisdiction.

5. Summons required for due process purposes only.

NOTE: In the absence of special provisions, the rules provided for in the ordinary actions as far as practicable, applies in special proceedings. (Rule 72, Section 2) “Practicable” means that it may be applied in special proceedings where doing so would not pose an obstacle to said proceedings. (Alan Sheker v. Estate of Alice Sheker, 534 SCRA 62)

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE, AND PROCESS As a rule, when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator. Settlement of a deceased person’s estate may be: 1. Testate: Decedent left a will. Necessitates a Probate Proceedings. 2. Intestate: Decedent left no will. NATURE It is a proceeding in rem which is binding against the whole world. All persons having interest in the subject matter involved, whether notified or not, are equally bound. JURSIDICTION The exercise of jurisdiction depends upon the gross value of the estate of the decedent. (B.P. 129, as amended by R.A. 7691)

Within Metro Manila ●

●

If the value of the estate does not exceed P400,000: Municipal Trial Court If above P400,000: Regional Trial Court

Outside Metro Manila ●

If the value of the estate does not exceed P300,000: Municipal Trial Court, Metropolitan Trial Courts,

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Municipal Circuit Trial Courts If above P300,000: Regional Trial Court

VENUE IN JUDICIAL SETTLEMENT OF ESTATE (Sec. 1, Rule 73) The decedent’s will shall be proved, or letters of administration granted, and his estate be settled in: Inhabitant of the Philippines (Whether Citizen or Alien)

Inhabitant of a Foreign Country

CFI of the Province/City where decedent resides at the time of his death

CFI of any province wherein decedent had his estate.

“Resides” should be viewed as the personal, actual or physical habitation of a person, his actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. (Garcia Fule v. CA, 74 SCRA 189) EXCLUSIONARY RULE: The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. (Sec. 1, Rule 73) EXTENT OF JURISDICTION OF PROBATE COURT The probate court exercises limited jurisdiction. Its jurisdiction merely relates to matters having to do with the settlement of the estate and the probate of wills, the appointment and removal of administrators, executors, guardians and trustees, examples of which are: 1. Liquidation of Estate 2. Administration of the Estate 3. Distribution of the Estate 4. Testamentary Capacity of Testator 5. Compliance with Formalities of the Will as prescribed by law (Camaya v. Patulandong, G.R. 144915, February 23, 2004) General rule: Questions as to title to property cannot be passed upon on testate or intestate proceedings. Exceptions: 1. In a provisional manner to determine whether said property should be included in the inventory, without prejudice to final determination of title in a separate action. (Cuizon v. Ramolete, 129 SCRA 495) 2. With consent of all the parties. without prejudice to the rights of third persons (Trinidad v. CA, G.R. No. 75579 (1991)) 3. If the question is one of collation or advancement (Coca v. Borromeo, 81 SCRA 278) 4. When the estate consists of only one property (Portugal v. Portugal-Beltran, 467 SCRA 184) POWERS AND DUTIES OF THE PROBATE COURT 1.

Issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect its orders and judgments, and all other powers granted it by law. (Sec. 3, Rule 73)

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2.

3. 4.

5.

6. 7. 8.

Issue a warrant for the apprehension and imprisonment of a person who defies a probate order until he performs such order or judgment, or is released. (Sec. 3, Rule 73) Order the probate of the will of the decedent. (Sec. 3, Rule 73) Grant letters of administration to the party best entitled thereto or to any qualified applicant (Sec. 5, Rule 79) Supervise and control all acts of administration, hear and approve claims against the estate of the deceased. (Sec. 11, Rule 86) Order the payment of lawful debts. (Sec. 11, Rule 88) Authorize the sale, mortgage or any encumbrance of real estate. (Sec. 2, Rule 89) Direct the delivery of the estate to those entitled thereto. (Sec. 1, Rule 90)

PROCEDURE FOR JUDICIAL SETTLEMENT OF ESTATE Petition for Probate of Will

Court order fixing the time and place for probate

Publication of hearing for 3 consecutive weeks. Notice shall be given to the designated/known heirs, legatees, and devisees, and the executor (if the petitioner is not the testator)

Issuance of Letters Testamentary/Administration

Publication of Notice for Filing Claims

Issuance of Order of Payment or Sale of Properties

Payment of Claims: Sale/Mortgage/Encumbrance of Estate Properties

Distribution of remainder, if any (Note: may be made prior payment of claims if a bond is filed by the heirs) 1. Summary settlement of estates (Rule 74) General rule: When a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator. Exceptions: 1. Extrajudicial Settlement of Estate 2. Summary Settlement of Estates of Small Value

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Special Proceedings

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN PARTIES An extrajudicial settlement of estate is valid when the following are present: 1. The decedent died intestate 2. The estate has no outstanding debts at the time of the settlement 3. The heirs are all of age, or the minors are represented by their judicial guardians or legal representatives 4. The settlement is made in a public instrument, stipulation, or affidavit duly filed with the register of deeds 5. The fact of such extrajudicial settlement must be published in a newspaper of general circulation in the province once a week for 3 consecutive weeks 6. In case of personal property, a bond equivalent to the value of the personal property posted with the Register of Deeds. WHEN ALLOWED Extrajudicial Settlement of Estate is allowed only in Intestate Succession. TWO-YEAR PRESCRIPTIVE PERIOD Creditors who have a claim against the estate must file a petition for letters of administration within 2 years after the death of the decedent. If no creditor files a petition, it shall be presumed that the decedent left no debts. (Rule 74 Section 1) AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR It is an affidavit executed by the sole heir of a deceased person, adjudicating to himself the decedent’s entire estate, which shall be filed in the office of the register of deeds. The sole heir simultaneously files a bond with said register of deeds in an amount equivalent to the value of the personal property involved. (Festin) PROCEDURE FOR EXTRAJUDICIAL SETTLEMENT OF ESTATE Divide the Estate among themselves by: 1. A public instrument 2. If they disagree: In an ordinary action of partition 3. If only one heir: Affidavit of SelfAdjudication

The public instrument or Affidavit of SelfAdjudication must be filed in the office of the Register of Deeds

The parties shall file (simultaneously and as a condition precedent) a bond in an amount equivalent to the value of the personal property involved, with the Register of Deeds

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The fact of extra-judicial settlement or administration shall be published in a newspaper of general circulation, once a week for 3 consecutive weeks SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED Summary Settlement of Estates of Small Value refers to a: ● summary proceeding for the settlement of the deceased person’s estate, without need of an appointment of an administrator or executor, whether the deceased died testate or intestate ● It applies only if the gross value of the estate does not exceed P10,000. (Sec. 2, Rule 74) PROCEDURE Petition for summary settlement with allegation that the gross value of the estate does not exceed P10,000

Publication of notice of the fact of summary settlement once a week for 3 consecutive weeks in a newspaper of general circulation, and after 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 notice

Court proceeds summarily, without appointing an executor/administrator, and to make orders as may be necessary such as: 1. Grant allowance of will, if any 2. Determine persons entitled to estate 3. Pay debts of estate which are due

Filing of bond fixed by the court

Partition of the Estate DISTINCTIONS BETWEEN EXTRAJUDICIAL SETTLEMENT OF ESTATE AND SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE Extrajudicial Settlement of Estate

Settlement of Estates of Small Value

Does not require court intervention

Involves judicial adjudication although in a summary proceeding

Value of the estate is immaterial

Applies only where the gross estate does not

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exceed P10,000. The amount is jurisdictional. Allowed only in intestate succession

Allowed in both testate and intestate estates

Proper only when there are no outstanding debts of the estate at the time of settlement

Available even if there are debts, as the court will make provisions for the payment thereof

Can be resorted only at the instance and by agreement of all the heirs

May be instituted by any interested party and even by a creditor of the estate, without the consent of the heirs

REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTELEMENT OF ESTATE As a rule, no extrajudicial settlement shall be binding upon any person who as not participated therein or had no notice thereof. Thus, as a remedy, an aggrieved party may, within the 2year reglementary period: 1. Claim against the bond or the real estate, or both 2. File suppletory or amended Extrajudicial Settlement 3. Reopening by intervention before rendition of judgment 4. Annulment of Deed of Extrajudicial Settlement WHEN APPLICABLE When there is an heir or other person who has been unduly deprived of his lawful participation in the estate. CONTENTS OF PETITION FOR ALLOWANCE OF WILL (Sec. 2, Rule 76) 1. The jurisdictional facts 2. Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent 3. Probable value and character of the property of the estate 4. The name of the person for whom letters are prayed 5. Name of the person having custody of it (if the will has not been delivered to the court) NOTE: Any defects in the petition will not render void the allowance of the will, or the issuance of the letters testamentary or of administration, when the will is annexed. GROUNDS FOR DISALLOWING A WILL (Sec. 9, Rule 76in rel. to Article 839 of the Civil Code) 1. If not executed and attested as required by law 2. If the testator was insane, or otherwise mentally incapable to make a will at the time of its execution 3. If it was executed under duress, or the influence of fear, or threats 4. If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit 5. If the 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.

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As a rule, anyone who contests the will must state the grounds for opposing its allowance, and serve a copy to the petitioner and other parties interested in the estate. (Sec. 10 Rule 76)

REPROBATE (Rule 77) 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 of First Instance in the Philippines. PROCEDURE FOR PROBATE TESTATOR DIES Within 20 days after knowledge of the death of the testator, he shall deliver the will: 1. to the court having jurisdiction 2. or to executor named in the will Duty of If he neglects to do so without Custodian satisfactory excuse, he shall be fined not exceeding P2,000 OR may be committed to prison and kept there until he delivers the will Within 20 days after he: 1. had knowledge of the death of the testator 2. or knows that he is named executor if he obtained such knowledge after the death of the testator

Duty of Executor

Present such will to the court having jurisdiction [unless the will has reached the court in any other manner] Within the same period, signify to the court in writing his acceptance of the trust or his refusal to accept.

If he neglects to do so without satisfactory excuse, he shall be fined not exceeding P2,000 or may be committed to prison and kept there until he delivers the will FILE PETITION FOR ALLOWANCE OF WILL 1. Any executor, devisee, or legatee named in a will Who may 2. Any other person interested in the file estate petition? 3. The testator himself during his lifetime It must show, so far as known to petitioner: 1. The jurisdictional facts 2. Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent Contents of 3. Probable value and character of the the Petition property of the estate 4. The name of the person for whom letters are prayed 5. Name of the person having custody of it [If the will has not been delivered to the court]

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NOTE: Any defects in the petition will not render void the allowance of the will, or the issuance of the letters testamentary or of administration, when the will is annexed.

1. 2. 3.

COURT’S DUTIES Fix a time and place for proving the will when all concerned may appear to contest the allowance of the will Cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation Cause copies of notice of the time and place to be addressed to the designated or other known heirs, legatees, and devisees at their residence [if known], and deposited in the post office with the postage prepaid at least 20 days before hearing.

NOTES: • Copy of notice must be mailed to the executor named [and to co-executor if any], if the petitioner is another person. • Newspaper publication not necessary when petition for probate was filed by the testator himself. • Personal service of copies of the notice 10 days before the hearing date shall be equivalent to mailing. • Notice shall be sent to compulsory heirs only if it is the testator asking for the allowance of his own will HEARING NOTE: Compliance with the notice and publication requirement must be shown before introduction of the testimony. All testimonies shall be taken under oath and reduced into writing. UNCONTESTED: The court may grant allowance of the will on the testimony of 1 of the subscribing witnesses Proof of Notarial Will

CONTESTED: All the subscribing witnesses and the notary public, if present in PH and not insane, must be produced and examined. NOTE: If all or some of the witnesses are in PH but outside of the province where the will is filed, their deposition must be taken.

Proof of Holographic Will

UNCONTESTED: At least one who knows the handwriting and signature of testator who explicitly declares that the will and signature are in the handwriting of the testator CONTESTED: At least 3 witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator

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WHEN TESTATOR HIMSELF FILES PETITION FOR ALLOWANCE OF HOLOGRAPHIC WILL: The fact that he affirms that the holographic will and the signature are in his own handwriting, is sufficient evidence of the genuineness and due execution. NOTE: If contested, burden of proof is on the contestant GENERAL RULE: No will shall be proved as a lost or destroyed will

Proof of Lost or Destroyed Will

UNLESS: 1. The will is proved to have been in existence at the time of death of the testator 2. Or is shown to have be fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge 3. Or its provisions are clearly and distinctly proved by at least 2 credible witnesses

WHEN WITNESSES DO NOT RESIDE IN PROVINCE: if none of the subscribing witnesses resides in the province where the will was filed, but the deposition of one or more may be taken, the court may: 1. on motion, direct the deposition to be taken, and 2. authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked questions as regards the will, and to the handwriting of the testator and others

WHEN WITNESSES ARE DEAD, INSANE, OR DO NOT RESIDE IN PH: the court may admit testimony of other witnesses to prove the sanity of the testator, and the due execution of the will. • As evidence of execution of the will, the court may admit proof of the handwriting of the testator, and of the subscribing witnesses, or of any of them

CERTIFICATE OF ALLOWANCE If the court finds that the will was duly executed, and that the testator was of sound and disposing mind at the time of the execution of the will, and not acted under duress, menace, undue influence, or fraud: A certificate of allowance, signed by the judge, and attested by the seal of the court shall be attached to the will. Such will and certificate shall be filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate allowance shall be recorded in the Register of Deeds of the province in which the lands lie.

ISSUED TO EXECUTOR IF HE IS COMPETENT, ACCEPTS THE TRUST, AND GIVES BOND AS REQUIRED REQUISITES FOR ALLOWANCE 1. Duly authenticated Copy of the will 2. Duly authenticated Order or decree of the allowance in foreign country; EVIDENCE NECESSARY FOR REPROBATE At the re-probate proceedings, the proponent must prove the following: 1. that the testator was domiciled in the foreign country 2. that the will has been admitted to probate in such country 3. that the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings 4. the law on probate procedure in said foreign country and proof of compliance therewith 5. the legal requirements in said foreign country for the valid execution of the will. (Fleumer v. Hix, 54 Phil. 610) NOTE: Foreign laws do not prove themselves in the Philippine Jurisdiction and Philippine Courts are not bound to take judicial notice of them. Thus, executors and administrators of the decedent’s estate are dutybound to introduce in evidence the pertinent law of the foreign country which admitted to probate the will of the decedent. (Ancheta v. Dalaygon, 2006) PROCEDURE FOR REPROBATE FILE PETITION FOR ALLOWANCE OF WILL IN PHILIPPINES TOGETHER WITH COPY OF WILL, ORDER OR DECREE OF ALLOWANCE (Both duly authenticated) Who may file? 1. Executor 2. Other person interested COURT SHALL FIX TIME AND PLACE OF HEARING. (Must follow the notice and publication requirement) HEARING IF ALLOWED, Certificate of Allowance, signed by the judge, and attested by the seal of the court, to which a copy of the will shall be attached, will be issued to be filed and recorded by the clerk. NOTE: The will shall have the same effect as if originally proved and allowed in such court. The court shall grant letters testamentary, or letters of administration with the will annexed. NOTE: Such letters testamentary or of administration shall extend to all the estate of the testator in PH.

UNDER RULE 78, LETTERS TESTAMENTARY WILL BE

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DISPOSITION OF THE ESTATE: After the payment of just debts and expenses of administration, the estate shall be disposed in accordance to the will. If there is residue, it shall be disposed of as provided by law in cases of estates in PH belonging to persons who are inhabitants of another state or country. EFFECTS OF PROBATE 1. The will shall be treated as if originally proved and allowed in PH courts 2. Letters testamentary or administration with a will annexed shall extend to all estates of the PH 3. After payment of just debts and expenses of administration, the residue of the estate shall be disposed as provided by law in cases of estates in PH belonging to persons who are inhabitants of another state or country. (Sec. 4, Rule 77)

LETTERS TESTAMENTARY AND ADMINISTRATION WHO MAY ADMINISTER THE ESTATE a) Executor b) Administrator Executor/ Executrix

Administrator/ Administratrix

Person named expressly by the deceased person in his will to administer, settle, and liquidate his estate

Person appointed by the intestate court to administer the estate of a deceased person who: a) Dies without leaving a will b) No named executor even if there is a will c) If the one named is incompetent, refuses the trust, or fails to give a bond d) Will is subsequently declared null and void

Has duty to present the will to the court within 20 days after knowledge of the death of the testator, or after he knows that he was appointed as executor (if he obtained such knowledge after death), unless the will has reached the court in any manner.

Decedent left no will, thus there is no such duty

Testator may provide that the executor serve without a bond (BUT the court may direct him to give a bond to pay debts incurred against the

Required to give bond unless exempted by law

estate) The amount of compensation to be received may be provided for by the testator in the provisions of the will, otherwise §7, Rule 85 will be followed.

Amount of compensation strictly governed by Section 7, Rule 85.

WHEN AND TO WHOM LETTERS OF ADMINSTRATION GRANTED A. TO WHOM GRANTED General rule: Any person who is competent. He must be capable of making a will or is not especially disqualified. A person or association authorized to conduct the business of a trust company in the Philippines may be appointed in the same manner as an individual. 1. Of age 2. Resident of the Philippines 3. The court deems him fit (i.e. not a drunkard) Exception: Those who are incompetent under law: 1. Minor 2. Non-resident of the Philippines 3. Those who, in the opinion of the court are unfit to exercise the duties of the trust by reason of: a. Drunkenness b. Improvidence c. Want of understanding d. Want of integrity e. Conviction of an offense involving moral turpitude. MINORITY OF DISQUALIFICATION A minor is incapacitated to enter into contracts, and needs the assistance of a guardian or legal representative to exercise any valid act. NON-RESIDENT OF THE PHILIPPINES AS A DISQUALIFICATION The courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here. (Guerrero v. Teran, G.R. No. 4898, March 19, 1909) DRUNKENNESS: DEGREE TO BE DISQUALIFIED It is the degree that would impair a person’s sound judgment and reason and which would necessarily affect his integrity and honesty.

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IMPROVIDENCE It generally connotes unwise or ill-advised spending. An executor or administrator is entrusted with the management of an estate and an improvident person lacks the good judgment and foresight required. WANT OF UNDERSTANDING

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It means lacking the knowledge to know the nature of the functions of an executor or administrator.

improvidence, or mismanagement, have the highest interest and most influential motive to administer the estate correctly. (Suntay III v. Cojuangco-Suntay, 2012)

LACK OF INTEGRITY Generally, connotes a person’s lack of credibility as to affect his honesty. Mere antagonistic interest does not disqualify a person outright from being appointed.

ORDER OF PREFERENE NOT ABSOLUTE The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. (In the Matter of the Intestate Estate of Cristina Aguinaldo-Suntay v. Isabel Cojuangco-Suntay, 2012)

CORPORATIONS CAN BE EXECUTORS OR ADMINISTRATORS If it is authorized to conduct the business of a trust company in the Philippines, then it may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual. However, it cannot be appointed as a guardian over the person of the ward. WHEN ARE LETTERS TESTAMENTARY OR ADMINISTATION GRANTED (1)

Letters testamentary: It is 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.

(2)

Letters of administration: It is an authority issued by the court to a competent person to administer the estate of the deceased if: a. No executor is named in the will b. If executor is appointed, such person named is incompetent, refuses the trust, or fails to give bond c. Person dies intestate

ORDER OF PREFERENCE (Rule 78, Section 6) The order of preference in the grant of administration are as follows: 1. Surviving spouse or next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve 2. The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin, or the person selected by them be incompetent or unwilling or if the surviving spouse 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 3. Such other person as the court may select if there is no such creditor competent and willing to serve. (Sec. 6)

OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY WHO MAY OPPOSE Any person interested in the will may file a written opposition. (Rule 79, Section 1) INTERESTED PERSONS 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. (Garcia-Quiazon v. Belen, G.R. No. 189121, July 31, 2013) FORM OF OPPOSITION 1. It must be in writing, signed by the applicant, stating the facts essential to give the court jurisdiction over the case. 2. It must state the grounds why the letters testamentary should not issue to the persons named therein as executors. GROUNDS 1. 2.

Incompetency of the person for whom the letters are prayed for; or Contestant’s own right to the administration (ex. Preferential right under order of preference)

NOTE: Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. 6, Rule 79). CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION 1. 2. 3. 4.

Jurisdictional facts; Names, ages and residences of the heirs, and the names and residence of the creditors of the deceased; The probable value and character of the estate (for initial inventory purpose); Name of the person for whom letters of administration are prayed. (Sec. 2, Rule 79)

NOTE: ‘Next of kin’ are those entitled by law to receive the decedent’s properties. (Ventura v. Ventura, G.R. No. L-26306, April 27, 1988)

NOTE: Defects in the petition shall not render void the issuance of letters of administration.

RATIONALE FOR ORDER OF PREFERENCE Those who will reap the benefit of a wise, speedy and economical administration of the estate, or in the alternative, suffer the consequences of waste,

ALLEGATIONS IN THE JURISDICTIONAL FACTS 1. Death of Testator 2. If the decedent is a resident, his last place of residence, which must be within the territorial

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3.

4. 5. 6.

jurisdiction of the court before whom the petition is brought; If the decedent is a non-resident, the place where he has an estate which must be within the territorial jurisdiction of the court before whom the petition is brought; Names, ages and residences of possible heirs and creditors; The probable value of the estate (for establishing proper court jurisdiction); The name of the person for whom the letters is prayed for. (De Guzman v. Angeles, 1988)

DUTY OF THE COURT ONCE PETITION FOR LETTERS OF ADMINISTRATION IS FILED 1. 2.

Fix the time and place for hearing of the petition Cause notice thereof to be given to: a. Known heirs of the decedent b. Known creditors of the decedent c. Other persons believed to have an interest in the estate.

NOTICE AND PUBLICATION Notice of the time and place of the hearing must be published for 3 weeks successively prior to the time appointed, in a newspaper of general jurisdiction in the province where the court has jurisdiction. Notice of such must also be given to: a) Known heirs b) Creditors c) Any other person who has an interest in the estate REASON FOR NOTICE 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. Notice through publication is jurisdictional, the absence of which makes court orders affecting other persons, subsequent to the petition, void. (De Guzman v. Angeles, 1988) SIMULTANEOUS FILING OF OPPOSITION AND PETITION A petition for letters of administration may be filed, at the same time with the opposition, to himself, or to any competent person or persons named. (Sec. 4, Rule 79) ORDER OF APPOINTMENT OF REGULAR ADMINISTRATION IS NOT FINAL The order of appointment of a regular administrator is appealable. (Sec.1 (e), Rule 109) POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS GENERAL POWERS OF AN EXECUTOR/ADMINISTATOR 1. 2.

To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner (Sec. 1, Rule 84) To examine and make invoices of the property belonging to the partnership in case of a deceased partner (Sec. 1, Rule 84)

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3.

4. 5.

To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court (Sec. 2, Rule 84) To make improvements on the properties under administration with the necessary court approval except for necessary repairs To possess and manage the estate when necessary: a. For the payment of debts; and b. For the payment of expenses of administration (Sec. 3, Rule 84)

The contract of lease, being a mere act of administration, could validly be entered into by the administratrix within her powers of administration, even without the court's previous authority. (De Hilado vs. Nava, 1939) 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, 1983) RESTRICTIONS ON THE POWER OF AN EXECUTOR/ADMINISTRATOR 1. He cannot acquire by purchase, even at public or judicial action, either in person or mediation of another, the property under administration; 2. He cannot borrow money without authority from the court; 3. He cannot speculate with funds under administration, nor place them where they may not be withdrawn at once by order of the court [even if it means depositing the funds in a current account with a lower interest rate]; 4. He cannot lease the property under administration for more than 1 year; 5. He cannot continue the business of the deceased unless authorized by the court; and o NOTE: If he does so, he is chargeable for all the losses without allowing to receive the benefits of any profit he might make. 6. He cannot profit by the increase or decrease in the value of the property under administration; 7. He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other coowners. (Herrera, Vol. III-A, pp. 116-117, 2005 ed.) 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: a) Interest b) Profit c) Income of such estate d) Proceeds of the estate as is sold by him, at the price at which it was sold. (Sec. 1, Rule 85) EXECUTOR OR ADMINISTRATOR REQUIRED TO MAKE INVENTORY AND RENDER ACCOUNTS Inventory: Rendered within 3 months of appointment and includes an appraisal of all real and personal estate of

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the deceased which has come into his possession or knowledge. (Sec. 1, Rule 83) • Not included: a) Wearing apparel of surviving husband or wife and minor children b) The marriage bed and bedding c) Such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased (Sec. 2, Rule 83) Accounting: Rendered within 1 year from the time of receiving letters testamentary or of administration unless the court otherwise directs. Executor or administrator shall render such further accounts as the court may require until the estate is wholly settled (Sec. 8, Rule 85) NECESSARY EXPENSES 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, 1919) NOT CONSIDERED 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 4. Expenses incurred by an executor or administrator to produce a bon APPOINTMENT OF SPECIAL ADMINISTRATOR Special Administrator: A representative of the decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed. 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. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass to the hands of a person fully authorized to administer it for the benefit of creditors and heirs. (Ocampo v. Ocampo et al., 2010) WHEN APPOINTED (1) When there is delay in granting letters testamentary or of administration (2) By any cause including an appeal from the allowance or disallowance of a will (Sec. 1, Rule 80) (3) When the executor or regular administrator has a claim against the estate he represents (Sec. 8, Rule 86) Regular Administrator Appointed when: a)

Decedent intestate

Special Administrator Appointed when:

died

a)

there is granting

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b) c) d)

Did not appoint any executor in his will Will subsequently disallowed There is no will (intestacy)

Obliged to pay debts of the estate Appointment may be subject of appeal

testamentary or of administration b) executor is a claimant of the estate c) by any cause, including an appeal from allowance or disallowance of a will Not obliged to pay debts of estate Regarded as an interlocutory order and not subject to appeal

ONLY ONE SPECIAL ADMINISTRATOR IS ALLOWED As under the law, only one general administrator may be appointed to administer, liquidate and distribute the estate of a decedent. It clearly follows that only one special administrator may be appointed to administer temporarily said estate. A special administrator is but a temporary administrator appointed in lieu of the general administrator (Roxas v. Pecson, 1948) ORDER OF PREDERENCE UNDER TULE 78 DOES NOT APPLY TO APPOINTMENT OF SPECIAL ADMINISTRATOR The order of preference in the appointment of a regular administrator does not apply to the selection 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, 2008) POWERS AND DUTIES OF A SPECIAL ADMINISTRATOR 1. Possess and take charge of the goods, chattels, rights, credits and estate of the deceased 2. Preserve the same for the executor or administrator afterwards appointed 3. Commence and maintain suit for the estate 4. Sell only perishable property and other property ordered sold by the court 5. Pay debts only as may be ordered by the court. (Sec. 2, Rule 80) 6. Prepare and submit an inventory of the estate 7. Render an accounting of administration. NOTE: A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court. WHEN DUTIES OF SPECIAL ADMINISTRATOR CEASES When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease: • He shall deliver to the executor/administrator the goods, chattels, money, and estate of the deceased in his hands. • The executor/administrator may prosecute to final judgment suits commenced by such Special Administrator (Sec. 3, Rule 80) GROUNDS FOR REMOVAL OF A REGULAR ADMINISTRATOR DOES NOT APPLY TO SPECIAL ADMINISTRATORS The appointment and removal of a special administrator rests entirely on the discretion of the court. The sufficiency of any ground for removal should thus be

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determined by the court whose sensibilities are, in the first place, affected by an act or in disregard of the rules or the orders of the court. (Degala v. Ceniza1947) GROUNDS FOR REMOVAL OF ADMINISTRATOR An administrator may be removed if he: 1. Neglects to: a. Render his account b. Settle the estate according to law, or c. Perform an order or judgment of the court, or a duty expressly provided by these rules, 2. Absconds 3. Becomes insane, or 4. Becomes incapable or unsuitable to discharge the trust NOTE: • When an executor or administrator dies, resign, or is removed, the remaining executor or administrator may administer the the trust alone, unless the court grants letters to someone to act with him. • If there is no remaining executor or administrator, administration may be to any suitable person. GROUNDS NOT EXCLUSIVE The court is invested with ample discretion in the removal of an administrator for as long as there is evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court which it deems sufficient or substantial to warrant the removal of the administrator. EXAMPLES OF VALID GROUNDS FOR REMOVAL OF ADMINISTRATOR 1. Death; 2. Resignation; 3. An administrator who disbursed funds of the estate without judicial approval. (Cotia vs. Jimenez, 104 Phil. 960); 4. False representation by an administrator in securing his appointment (Cabarubbias vs. Dizon, 76 Phil. 209); 5. An administrator who holds an interest adverse to that of the estate or by his conduct showing his unfitness to discharge the trust (Garcia vs. Vasquez, 32 SCRA 490); 6. An administrator who has the physical inability and consequent unsuitability to manage the estate (De Borja vs. Tan, 93 Phil. 167). WHEN LETTERS OF ADMINISTRATION REVOKED 1. When a newly-discovered will has been admitted to probate after the issuance of letters of administration, such letters of administration may be revoked; and 2. When letters of administration have been issued illegally or without jurisdiction, such letters of administration may be revoked by the probate court. (Sec.1. Rule 82) EFFECTS OF REVOCATION (Sec.3, Rule 80) 1. All powers of administration shall cease; 2. The administrator shall forthwith surrender his letters to the court

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3. 4.

The administrator shall render his account within such time as the court directs, and; Proceedings for the issuance of letters testamentary or of administration under the will shall be had.

DUTY OF ADMINISTRATOR UPON REVOCATION 1. Surrender the letters to court 2. Render his account within such time as the court may direct (Sec. 1, Rule 82) POWERS OF NEW EXECUTOR OR ADMINISTRATOR 1. 2. 3. 4.

To collect and settle the estate not administered that the former executor or administrator had; To prosecute or defend actions commenced by or against the former executor or administrator; To recover execution on judgments in the name of former executor or administrator; Authority to sell granted by court to former executor or administrator may be renewed without further notice or hearing. (Sec. 4, Rule 82)

ESTATE IS BURDENED WITH LIEN OF CREDITORS Upon the death of a person, all his property is burdened with all his debts, his death creating an equitable lien for the benefit of the creditors. Such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. (Suiliong and Co. v. Chio Taysan, 12 Phil. 13) PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE 1. To protect the estate of the deceased 2. To enable the executor or administrator to examine each claim, and determine whether it is proper, 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. L29407, July 29, 1983) TIME WITHIN WHICH CLAIMS SHOULD BE FILED; EXCEPTIONS General Rule: The filing of claims against the estate shall not be more than 12 nor less than 6 months after the date of the first publication of the notice. (Sec. 2, Rule 86) Exception: Belated Claims Belated claims may be filed even beyond the period fixed by the court: 1. Money claims against the estate may be allowed at any time before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable. The court may allow such claim to be filed not exceeding 1 month from the order allowing belated claims (Quisumbing v. Guison, 1946) 2. Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him.

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CONDITIONS IN FILING BELATED CLAIM The rule clothes the court with authority to permit the filing of a claim after the lapse of 12 months, or at any time before the order of distribution is entered, subject to the following conditions: 1. Application of a creditor who has failed to file his claim 2. Just cause [showing why permission for the belated claim should be granted] 3. The extension of time granted for filing the claim must not exceed one month. PUBLICATION OF NOTICE TO CREDITORS The executor or administrator shall cause the: 1. publication of notice for 3 weeks successively in a newspaper of general circulation in the province, and 2. posting in 4 public places in the province, and 3. in 2 public places in the municipality, where the decedent last resided. (Sec. 3, Rule 86) 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, 1963) STATUTE OF NON-CLAIMS It is the period fixed for the filing of the claims against the estate. The rule mandates certain creditors of a deceased person to present their claims for examination and allowance within a specified period, otherwise they are barred forever. 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. (Santos v. Manarang, 27 Phil. 213) NOTE: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of nonclaims and statute of limitations must concur in order for a creditor to collect. TYPES OF CLAIMS COVERED 1. All money claims against the decedent arising from contract, express or implied, whether the same be due, not due, or contingent 2. All claims for funeral expenses and expenses for the last sickness of the decedent 3. Judgment for money against the decedent. The judgment must be presented as a claim against the estate, where the judgment debtor dies before levy on execution of his properties. (Sec. 5, Rule 86)

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NOTE: Enumeration is exclusive. CONTINGENT CLAIM It is one by which, by its nature is necessarily dependent upon an uncertain event for its existence and claim, and its validity and enforceability depending upon an uncertain event. (Gasket and Co. v. Tan Sit, 43 Phil. 810) WHEN ALLOWED 1. When it becomes absolute 2. Presented to the court or executor/administrator within 2 years from the time limited for other creditors to present their claims; and 3. Not disputed by executor/administrator • If disputed: It may be proved and allowed or disallowed by the court as the facts may warrant (Rule 88, Section 5) NOTE: Mutual claims may be set off against each other in such action. ALTERNATIVE REMEDES OF A MORTGAGE CREDITOR UPON DEATH OF DEBTOR 1. Waive the security and claim the entire debt 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 2. Foreclose mortgage judicially and prove any deficiency as an ordinary claim • Foreclosure suit should be against the executor or administrator as party defendant. The creditor may obtain deficiency judgment if he fails to fully recover his claim 3. Rely solely on the mortgage and foreclose it before it is barred by prescription without right to claim for deficiency • This mode 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 NOTE: These remedies are distinct, independent, and mutually exclusive remedies. An election of one remedy operates as a waiver of the other CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE When the executor or administrator has a claim against the estate he represents: 1) The executor or administrator is required to give notice to the court in writing. 2) The court shall appoint a special administrator who is vested with the same powers and subject to the same liability as the general administrator or executor only insofar as it pertains to the adjustment of such claim. 3) The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim. (Sec. 8, Rule 86)

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NOTE: These instances are deemed actions that survive the death of the decedent. Claims that survive

HOW TO FILE A CLAIM PROCEDURE First: Deliver the claim with the necessary vouchers to the clerk of court. If executor or administrator demands original: Original must be exhibited.

Second: Serving a copy of claim on the executor or administrator.

If founded on a bond, bill, note, or other instrument: Original need not be filed but copy with all indorsements must be attached to the claim filed.

UNLESS: lost or destroyed. Claim must then be accompanied by an affidavit containing a copy or particular description of the instrument and stating its loss or destruction.

If claim is due: accompanied by affidavit stating the amount justly due, that no payments have been made which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If claim is not due, or is contingent: accompanied by affidavits stating the particulars thereof.

NOTES: 1) When the affidavit is made by a person other than the claimant, he must state the reason why it is not made by the claimant. 2) The claim when filed, shall be attached to the record of the case in which the letters testamentary or of administration were issued, although the court, in its discretion, and as a matter of convenience, may order all the claims to be collected in a separate folder. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS The following are the actions that may be commenced directly against the executor or administrator: 1) Recovery of real or personal property or any interest therein from the estate 2) Enforcement of a lien thereon 3) Action to recover damages for any injury to person or property, real or personal. (Sec. 1, Rule 87)

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Claims that do not survive

Rule 87, Sec. 1

Rule 86, Sec 5

Actions that may be commenced directly against the executor and administrator

Actions that may be commenced against the estate of the deceased.

Recovery of real/personal property (or any interest therein) from the estate; enforcement of a lien thereon; action to recover damages arising from tort

Money claims, debts incurred by the deceased during his lifetime arising from contract; claims for funeral expenses or the last illness of the decedent; judgments for money against the decedent.

ACTIONS WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR OR ADMINISTRATOR An action upon claim for recovery of money or debt or interest therein shall not be commenced against the executor or administrator. This should be brought against the estate itself. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED A creditor may commence and prosecute to final judgment, in the name of the executor or administrator, an action for the recovery of property fraudulently conveyed or attempted to conveyed by the deceased, when the following circumstances concur: 1. That the deceased in his lifetime had conveyed real property or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt or duty; 2. That the deceased had so conveyed such property, right, interest debt or credit, that by law the conveyance would be void against his creditors; 3. That the subject of the attempted conveyance would be liable to attachment by any of the creditors in his lifetime; 4. That there is a deficiency of assets in the hands of an executor or administrator for the payment of the debts and expenses for administration; and 5. That the executor or administrator has failed to commence the action for recovery of the subject of the conveyance or attempted conveyance. 6. That leave is granted by the court to the creditor to file the action 7. That a bond is filed by the creditor as prescribed in this provision; and 8. That the action by the creditor is in the name of the executor or administrator. NOTE: The last three requisites are unnecessary where the grantee is the executor or administrator himself, in which case the action should be in the name of all the creditors.

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DEBTS PAID IN FULL IF ESTATE SUFFICIENT The executor or administrator shall pay within the time limited for that purpose: 1. After hearing and ascertaining all the money claims against the estate; and 2. It appears that there are sufficient assets to pay the debts (Sec. 1, Rule 88) ORDER OF PREFERENCE OF PAYMENT 1. Pay according to the provisions of the will: if the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or the family expenses, 2. If the provision made by the will or the estate appropriated is not sufficient: such part of the estate of the testator, real or personal, as is not disposed of by will, if any shall be appropriated. ORDER OF PROPERTY LIABILITY 1. Personal property not disposed of by will 2. Real property not disposed of by will 3. Any deficiency shall be met by contributions as provided in Sec. 6, Rule 88. General Rule: Personal estate is first chargeable to the estate. Exception: Real estate is chargeable: 1. When personal property of decedent is insufficient to pay debts; or 2. Where sale of personal property would be detrimental to the participants of the estate. WHEN PERSONAL PROPERTY ALREADY IN THE HANDS OF HEIRS, LEGATEES, OR DEVISEES The court may order the heirs to turn over the personal properties in such proportion necessary to pay claim, even if the administrator possess the real properties as Sec. 2 requires personal property is first chargeable to the estate. ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS If court is satisfied that a contingent claim is valid: 1. It may order the executor/administrator to retain in his hands sufficient estate for the purpose of paying the contingent claim when such becomes absolute. 2. If estate insolvent: retain a portion equal to the dividend of the other creditors. (Sec. 4, Rule 88) PAYMENT OF CONTINGENT CLAIMS 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 the estate retained by the executor or 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 the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled. (Sec. 5, Rule 88)

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If the contingent claim matures after the expiration of the two years, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them (Jaucian v. Querol, 1918) CONTRIBUTIVE SHARES FIXED BY COURT When the distributees have already come into possession portions of the estate, the court shall fix their contributive shares that they may be liable to the estate of the creditors. (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 even 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. (Pavis v. de la Raja, 8 Phil. 70) PROVISIONS OF THE CIVIL CODE ON PREFERENCE OF CREDIT APPLIES If estate is insolvent, Section 7, Rule 88 in relation to Articles 1059 and 2239 to 2251 of the Civil Code on Concurrence and Preference of Credits must apply. CLAIMS OUTSIDE THE PHILIPPINES Claims proven outside the Philippines may be added to the list of claims in the Philippines against the estate of an insolvent resident and the estate will be distributed equally among those creditors, if: 1) executor had knowledge and 2) opportunity to contest its allowance therein. (Rule 88, Section 10) PRINCIPLE OF RECIPROCITY The benefit of Sections 9 (insolvent non-resident rule) and 10 (claims outside Philippines rule) cannot be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines, according to their respective claims. (Sec.10, Rule 88) TIME FOR PAYING DEBTS AND LEGACIES General rule: Not exceeding 1 year in the first instance Exception: Court may extend the period, after hearing and notice, 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. GROUNDS FOR EXTENSION 1. Original executor or administrator dies 2. New administrator is appointed (Sec. 16, Rule 88) REQUISITES 1. Executor or administrator must apply. 2. Notice of the time and place of hearing. 3. Court must hear the application. 4. Extension not to exceed 6 months beyond the time which the court might have allowed to such original executor or administrator

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STAGES BEFORE DISTRIBUTION OF ESTATE 1. Liquidation of the estate 2. Collation and Declaration of heirs • Purpose: 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 distributees Afterwards, the residue may be distributed and delivered to the heirs. (Herrera) POWERS OF THE COURT IN THE DISTRIBUTION AND PARTITION 1. Collate; 2. Determine the heirs; and 3. Determine the share of each heirs. Advancements made or alleged to have been made to heirs by decedent may be determined by court having jurisdiction of estate. The final order of the court shall be binding on the person raising the questions and on the heir. (Sec. 2,Rule 90) LIQUIDATION It is the determination of all assets of the estate and payment of all debts and expenses. (Festin) General rule: An order of distribution or assignment shall be made only after payment of the debts, funeral charges, and other expenses against the estate. (Silverio, Jr. v. CA, G.R. No. 178993, September 16, 2009) Exception: Distributees, or any of them, give a bond, in sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. PROJECT OF PARTITION It is a proposal for the distribution of the hereditary estate which the court may accept or reject. (Reyes v. Barretto-Datu, 1967) 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.) It is the court that makes that distribution of the estate and determines the persons entitled thereto: 1. On application of executor/administrator or person interested in the estate 2. Notice 3. Hearing Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled. Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession. If there is a controversy as to who are heirs or shares such shall be heard and decided as in ordinary cases. (Sec. 1, Rule 90) EFFECT OF FINAL DECREE OF DISTRIBUTION A final decree of distribution of the estate of a deceased person vests the title to the land of the estate to the distributes. If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless

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properly set aside for lack of jurisdiction or fraud. (Vda. de Kolayco v. Tengco, 207 SCRA 600) 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, 1989) REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE The better practice for the heir who has not received his share is to: 1. Demand his share through a proper motion in the same probate or administrative proceedings, or 2. 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, 1972) PROBATE COURT LOSES JURISDICTION OF AN ESTATE UNDER ADMINISTRATION AFTER PAYMENT OF ALL DEBTS 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, 1972) INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION General rule: A 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, 85 Phil. 228) Execptions: Under the following circumstances, the probate court may issue writs of execution: a) To satisfy the distributive shares of devisees, legatees, and heirs in possession of the decedent’s assets. b) To enforce payment of expenses of the partition. c) To satisfy the costs when a person is cited for examination in probate proceedings TRUSTEES A trust is a confidence reposed in one person, called the trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former of the benefit of the latter. The person in whom confidence is reposed as regards the property for the benefit of another is known as the trustee. (Festin) NOTE: Rule 98 of the Rules of Court only applied to Express trust, one which is created by a will or written instrument. WHEN IS A TRUSTEE NECESSARY A trustee is necessary: a) To carry into effect a will where the testator omitted appointing a trustee in the Philippines b) To carry into effect other written instruments where the trustee declines, resigns, dies, or is

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removed before the accomplishment of trust (Festin) DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR EXECUTOR/ ADMINISTRATOR

TRUSTEE

Accounts are NOT under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court

Accounts must be UNDER OATH and filed ANNUALLY

Court that has jurisdiction may be MTC or RTC

Court which has jurisdiction is the RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns, or is removed in the appointment of new trustee

CONDITIONS OF THE BOND General rule: Before entering the duties of his trust, a trustee shall file with the clerk of court having jurisdiction of the trust a bond in the amount to be determined by the court. Exception: The trustee may be exempted when: 1. Testator requests so; 2. All person beneficially interested in the trust requests so. (Sec. 5, Rule 98) CONDITIONS The following conditions shall be deemed to be a part of the bond whether written or not:

May sell, encumber, or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for preservation of property or if sale will be beneficial to heirs, legatees or devisees (Upon application to the court with written notice to the heirs)

May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court

Order of sale has NO TIME LIMIT

Order of sale has NO TIME LIMIT

Approved by the court to settle estate of the decedent

Appointed to carry into effect the provisions of a will or written instrument (contractual trust)

NOT EXEMPTED from filing a bond even if such exemption is provided in the will (ratio: bond is only conditioned upon payment of debts)

May be EXEMPTED from filing a bond if provided in the will or if beneficiaries requested such exemption

Services of executors or administrators are terminated UPON PAYMENT OF DEBTS of the estate and DISTRIBUTION of property to the heirs

Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of the trust (period may be provided for in the will or trust contract)

MUST PAY the debts of the estate

No obligation to pay the debts of the beneficiaries or trustor

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1.

Inventory: Make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge

2.

Faithful Management and Discharge of Trust: 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 the instrument or order under which he is appointed;

3.

Render Accounting: Upon oath at least once a year until his trust is fulfilled, a true account of the property in his hands and the management and disposition thereof • UNLESS: he is excused therefrom in any year by the court

4.

Settlement of Account and Delivery of the Estate: At the 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 to thereto. (Sec. 6, Rule 98)

REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE The court may remove a trustee upon: 1) Petition of the parties beneficially interested 2) Due notice to the trustee 3) Hearing GROUNDS FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE 1. Insanity 2. Incapability if discharging the trust or unsuitability therefor. 3. Resignation; but propriety is to be determined by the court (Rule 98, Section 8) 4. Death of trustee 5. When the termination appears essential to the interest of the person beneficially interested. 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.

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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, 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 Republic, under whose courts he was appointed. (Herrera)

B. ESCHEAT (RULE 91) Escheat is a proceeding whereby the State, by virtue of sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. In the absence of a lawful owner, a property is claimed by the State to forestall an open invitation to self-service by the first-timers. (Republic v. CA, 2002) The concept behind this is the REGALIAN DOCTRINE: “all lands of the public domain belong to the State, that the State is the source of any asserted right to ownership of land and charged with the conservation of such patrimony.” ASSIGNMENT OF PROPERTIES FOR LIMITED PURPOSES

Resident Deceased

Assign personal estate to municipality or city where he last resided in the Philippines Assign real estate to the municipalities or cities, respectively, in which the same is situated

Deceased Never Resided in Philippines

The whole estate may be assigned to the respective municipalities or cities where the same is located.

LIMITED PURPOSES For the benefit of: 1. Public schools 2. Public Charitable institutions 3. Centers WHEN TO FILE 1. When the decedent died without leaving a will, or 2. When the decedent dies without leaving legal heirs to succeed, or 3. When there is a will but was not allowed to be admitted to probate (Sec. 1, Rule 91) REQUISITES FOR FILING OF PETITION 1. Person dies intestate leaving no heirs or someone entitled by law to succeed 2. The petition must be filed in behalf of the real party in interest, the Republic of the Philippines 3. Filed in the CFI of the province where the deceased last resided or where he had his estate (if nonresident)

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REMEDY OF RESPONDENT AGAINST PETITION 1. Respondents have opportunity to file an opposition in the scheduled hearing set forth by the court 2. Respondents can file an action to recover the escheated property within 5 years from date of judgment. • If already sold, the municipality or city shall be accountable for the proceeds after deducting reasonable charges for the care of the estate (Rule 91)

PERIOD FOR FILING ACTION TO RECOVER Action to recover escheated property may be brought within 5 years from date of such judgment. NOTE: If not brought within that period, the claim shall be barred forever. REASON: The 5-year period is not a device capriciously conjured by the State to defraud any claimant. On the contrary, it is decidedly prescribed to encourage would be claimants to be punctilious in asserting their claims, otherwise, they may lose them forever in a final judgment. (Republic v. CA, 2002) PROCEDURE OF ESCHEAT PROCEEDINGS Applies When? If person dies intestate, seized of real property in the Philippines, or leaves no heir or person by law entitled to the estate Who may file petition? Contents of Petition: set Solicitor General or his forth the facts, and prayer representative in behalf of that the estate of the the Republic of the deceased be declared Philippines escheated. Court issues an Order for Hearing: which recites the purpose of the petition, fixes a date and place for the hearing. • Hearing date shall not be more than 6 months after the entry of the order Court directs Publication of Order of Hearing: at least once a week for 6 successive weeks in some newspaper of general circulation published in the province, as the court shall be deem best HEARING AND JUDGMENT •

Upon satisfactory proof of: o Order for Hearing and Publication requirement o that the person died intestate, seized of real or personal property in PH, leaving no heir or person entitled to the same o no sufficient cause shown to the contrary • Court shall adjudge that the estate of the deceased in PH, after the payment of just debts and charges, shall escheat ASSIGNMENT OF PROPERTIES FOR LIMITED PURPOSES Resident deceased • assign the personal estate to the municipality or city where he last resided in the Philippines

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assign the real estate to the municipalities or cities, respectively, in which the same is situated. Never Resided in PH • the whole estate may be assigned to the respective municipalities or cities where the same is located. •

GENERAL POWERS AND DUTIES OF GUARDIANS (applicable to both guardians over minors & incompetents) 1.

Care and Custody of Ward, and/or Management of the ward’s estate o If ward is non-resident: Guardian shall have management of all the estate of the ward within PH. o No court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

2.

Pay debts of the ward o If not sufficient, then out of the ward’s real estate upon obtaining an order for the sale or encumbrance thereof.

3.

Settle accounts, collect debts, and appear in actions for the ward o Guardian may, with the approval of the court, compound for the same, and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects.

4.

Frugally manage the estate and apply proceeds to maintain the ward o If income and profit insufficient, guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply the proceeds as may be necessary to such maintenance.

5.

Join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, when authorized by the court. o Such authority shall only be granted after hearing, upon such notice to the relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action.

6.

Render Inventory within 3 months after appointment and annually upon request of interested persons a. Interested persons may compel, upon application, to render inventory b. Inventories and accounts shall be sworn to by the guardian c. All the estate of the ward described in the 1st inventory shall be appraised. d. In the appraisement, the court may request assistance of one or more inheritance tax appraisers.

LIMITED PURPOSE: For the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.

C. GUARDIANSHIP Guardianship is a trust relation of most sacred character, in which one person, called a “guardian” acts for another called the “ward” whom the law regards as incapable of managing his own affairs. (Festin) BASIS OF GUARDIANSHIP Guardianship is the duty of protecting the rights of persons or individuals who because of age or incapacity are in an unfavorable position vis-à-vis other parties. Unable as they are to take due care of what concerns them, they have the political community to look after their welfare. Parens Patriae is inherent in the supreme power of the State. It is in interest of humanity and for the prevention of injury to those who cannot protect themselves. (Festin) WHO IS A GUARDIAN He is a person appointed by law to entrust with the custody and control of persons and/or properties of an infant, insane, or persons incapable of managing his own affairs (Festin) a. Guardian over incompetent who are not minors – governed by Rules 92-97 of the Rules of Court b. Guardian over minors – governed by AM 03-0205 SC “Rule on Guardianship of Minors” CLASSIFICATION AND KINDS OF GUARDIAN (FESTIN) 1. According to Scope of Powers a. General – one whose responsibility is over the person of the ward or over his property b. Limited - one whose responsibility is over the property only 2. According to the Constitution a. General Guardian b. Legal Guardian – is a person who, without need of judicial appointment, is designated as such by provision of law. [e.g. Parents over the person of their minor children] c. Guardian ad litem – any competent person appointed by the court to prosecute or defend a minor, insane or person declared to be competent, in an action in court. General Rule: Only acts of administration are allowed to be discharged by guardians. Exception: When court orders specifically that a specific act of dominion or ownership may be discharged (i.e selling or property)

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NOTE: Whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward: Like proceedings shall be made for securing an inventory and appraisement of it, within 3 months after discovery, succession, or acquisition. 7.

Account for his settlement and allowance a. When: Upon the expiration of a year from the time of his appointment, and as often as may be required.

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The guardian (other than a parent), shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and compensation for his services, as the court deems just. (should not exceed 15% of the net income of the ward)

CONDITIONS OF THE BOND OF THE GUARDIAN (Applicable to both guardians over minors & incompetents) 1. 2. 3.

4.

To make and return to the court a complete inventory within 3 months of the whole estate of his ward To faithfully execute the duties of his trust, manage the estate, and dispose of the estate To render a true and just account of all the estate of the ward in his hands and all the proceeds therefrom, and at the expiration of their trust to fully account the settlement and surrender all that belongs to he ward’s estate To perform all orders of the court by him to be performed

NOTE: When deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate. NOTE: Rule 92-97 now only applies to guardianship over incompetent persons who are not minors. Guardianship over minors is governed by A.M. No. 03-02-05 SC. Over Incompetent

Over Minors (A.M. No. 03-02-05 SC)

Incompetent: 1. Those suffering from the penalty of civil interdiction 2. Hospitalized lepers 3. Prodigals 4. Deaf and Dumb 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 aid take care of themselves and manage their property

Minors: below 18 years of age whether incompetent or not

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Who may petition for appointment of guardian? a) Any relative, friend, or other person interested b) Ward himself c) Director of Health if needs hospitalization

Who may petition for appointment of guardian? a) Any relative, friend, or other person b) Ward himself if 14 yrs. old/over c) Secretary of Social Welfare or Secretary of Health (in case insane minor needs hospitalization)

Venue: If resident: CFI of province or municipality where ward residing If non-resident: CFI where property or part is situated

Venue: If resident: Family Court of province or municipality where ward residing If non-resident: Family Court where property or part is situated

Factors in appointing: a) Financial situation b) Physical & Mental condition c) Moral character & conduct d) History of the appointee e) Ability to discharge duties and powers

Factors in appointing: a) Financial situation b) Physical & Mental condition c) Moral character & conduct d) Relationship of trust with minor e) Ability to discharge duties and powers f) Lack of conflict of interest with minor

Grounds for termination: a) Competence of ward b) Death of ward c) Death of guardian d) No need for guardianship

Grounds for termination: a) Emancipation of ward b) Death of ward c) Death of guardian

Procedure for Opposition, hearing, and appointment of non-resident guardian are the same

RULES ON GUARDIANSHIP OF MINORS Legal Guardian of Minors: father and mother jointly, without need for court appointment GROUNDS FOR FILING PETITION FOR GUARDIANSHIP OF A MINOR a) Death, continued absence, or incapacity of parents b) Suspension, deprivation, or termination of parental authority c) Marriage of surviving parent who is unsuitable to exercise parental authority d) Best interests of the minor

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There are no fixed guideline as to determine which is the best interest of the child but it is inferred from circumstances which shall best rear the development of the child (Gualbeto v. Gualberto, 2005) Another factor is the Tender Age presumption which gives the mother the preference to be awarded custody of a child below 7 years of age. VENUE Guardianship of a person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court chartered city where the minor or incompetent persons resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or the party thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds that jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.

ORDER OF PREFERENE IN APPOINTMENT OF GUARDIAN (IN ABSENCE OF PARTIES) 1. Surviving grandparent 1. Oldest brother or sister of the minor over 21 years of age unless unfit or disqualified 2. Actual custodian of the minor over 21 years of age 3. Any other person whom the court deems would serve the best interest of the minor. OPPOSITION: WHO MAY FILE 1. Any interested person by written opposition 2. The social worker ordered to make the case study report, may intervene on behalf of the minor if he finds that the petition for guardianship should be denied GROUNDS FOR OPPOSITION 1) Majority of the minor 2) Unsuitability of the person for whom letters are prayed. GENERAL POWERS AND DUTIES OF GUARDIAN OF A MINOR Resident minor: Care and custody of the person of his ward and management of his property, or only management of his property. Non-resident minor: Management of all his property within the Philippines TERMINATION OF GUARDIANSHIP Modes: • Petition that competency of ward be adjudged • Removal of Guardianship • Resignation • Marriage/Voluntary emancipation of ward

D. WRIT OF HABEAS CORPUS It is a proceeding which provides for 2 stages whereby:

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1. 2.

a person restrained of his liberty may be released from any kind of illegal detention; or are detained from the control of those who are entitled to their custody.

NATURE Petition for habeas corpus is like a proceeding in rem as it is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign. It is also constituted for the purpose of fixing the status of a person. There can be no judgment entered against anybody since there is no real plaintiff and defendant. (Alimpos v. CA, 106 SCRA 159) PURPOSE To inquire into all manner of involuntary restraint, the legality of detention, and, if the detention is found to be illegal, to require the release of the detainee. (Manguila v. Judge Pangilinan, 2013) SCOPE Writ of Habeas Corpus extends to all cases of: 1. illegal confinement or detention by which any person is deprived of his liberty; or 2. when the rightful custody of any person is withheld from the person entitled thereto. (Sec. 1, Rule 102) CONCEPT OF RESTRAINT Actual and effective restraint is required, not merely nominal or moral. (Zagala v. Ilustre, 48 Phil. 282) However, actual physical restraint is not always required; any restraint which will prejudice freedom of action is sufficient. (Moncupa v. Enrile et al., 1986) General rule: Inquiry into the cause of detention will proceed only where restraint exists. Thus, the release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot. Exceptions: 1. 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. 2.

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, 568 SCRA 1)

NOTE: Temporary release may constitute restraint when: 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

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4.

Where a deprivation of freedom originally valid has become arbitrary. (Moncupa v. Enrile et al., 1986)

JURISDICTION IN ISSUANCE OF WRIT 1. Supreme Court, the Court of Appeals, or any member thereof in the instances authorized by law (enforceable anywhere in the Philippines) 2. Regional Trial Court, or a judge thereof (enforceable only within his judicial district) 3. Family Court, in case of petition for custody of minors and the issuance of the writ in relation to custody of minors (Section 20, AM 03-04-04-SC, Re: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors) WHO MAY FILE PETITON (Sec. 3, Rule 102) 1. The party for whose relief it is intended; or 2. By some person on his behalf NOTE: ‘Some person’ means 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, 1995) CONTENTS OF PETITION The petition, signed and verified either by the party for whose relief it is intended, or by some person on his behalf, shall set forth: 1. That the person in whose behalf the application is made is imprisoned or restrained on his liberty; 2. The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; 3. The place where he is so imprisoned or restrained, if known; 4. A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. (Sec. 3, Rule 102) CONTENTS OF THE RETURN (Sec. 10, Rule 102) The officer who makes the return or the person who has custody of the prisoner, shall state: 1. Whether he has or has not the party in his custody or power, or under restraint; 2. 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; 3. 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; 4. 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.

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NOTE: The return or statement shall be: 1. Signed by the person who makes it; and 2. Sworn to by the person who makes it: a. if the prisoner is not produced b. In all other cases i. Unless, the return is made and signed by a sworn public officer in his official capacity. WHEN RETURN CONSIDERED EVIDENCE, AND WHEN ONLY A PLEA (Sec. 13, Rule 102) Custody of Prisoner is Pursuant to Law

Restraint of Prisoner’s Liberty is by any Private Authority

The return shall be considered prima facie evidence of the cause of restraint

The return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts

DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION Peremptory Writ

Preliminary Citation

Unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified.

Requires the respondent to appear and show cause why the peremptory writ should not be granted.

(Lee Yick Hon v. Collector of Customs, G.R. No. L-16779, March 30, 1921) WHEN NOT PROPER/APPLICABLE 1. The Writ of Habeas Corpus is not in the nature of a writ of error. It cannot be used as a substitute for the trial court’s function. 2. Where the petitioner has the remedy of appeal or certiorari, Writ of Habeas Corpus cannot take place of appeal, or certiorari. 3. The Writ of Habeas Corpus cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits. 4. It cannot be used for asserting or vindicating the denial of right to bail. (Galvez v. CA, 1994) WHEN WRIT DISALLOWED/DSCHARGED (Sec. 4, Rule 102) 1.

The person alleged to be restrained of his liberty is: a. In the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and

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b. 2.

3. 4.

5.

that the court or judge had jurisdiction to issue the process, render the judgment, or make the order. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order The person is charged with or convicted of an offense in the Philippines, or suffers imprisonment under a lawful judgment. 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 (Rule 102, Section 14) Even if arrest of a person is illegal, the following supervening events may bar release: a. Issuance of a judicial process (Sayo v. Chief of Police of Manila, G.R. No. L-2128, May 12, 1948) b. 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, July 7, 1995) c. Filing of an information for the offense for which the accused is detained, bars the availability of the writ of habeas corpus (Velasco v. CA, G.R. No. 118644, July 7, 1995)

PETITION FOR CUSTODY OF MINORS WHO MAY FILE THE PETITION A verified petition for the rightful custody of a minor may be filed by any person claiming such right. WHERE TO FILE THE PETITION Family Court of the province or city: 1. where the petitioner resides or 2. where the minor may

be

found.

CONTENTS OF THE PETITION (Section 4) The verified petition (accompanied by a certificate against forum shopping, which the petitioner must sign personally) shall allege the following: 1. 2. 3. 4.

The personal circumstances of the petitioner and of the respondent; The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; The material operative facts constituting deprivation of custody; and Such other matters which are relevant to the custody of the minor.

VERIFIED ANSWER (Section 7) The respondent’s verified answer to the petition must be filed within 5 days after service of summons and a copy of the petition. MOTION TO DISMISS (Section 6) ● General Rule: A motion to dismiss the petition is not allowed ○ NOTE: Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer.

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●

Exception: A Motion to Dismiss may be filed on the ground of lack of jurisdiction over the subject matter or over the parties.

CASE STUDY AND DUTY OF SOCIAL WORKER (Section 8) The court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation to the court at least 3 days before the scheduled pre-trial, upon the filing of the verified answer or the expiration of the period to file it. PRE TRIAL 1. Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial (Section 10) 2. If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed (Section 11) Unless: his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. 3. 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 renders judgment on the basis of the pleadings and the evidence presented. (Section 9) NOTICE OF PRE-TRIAL 15 days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: ● fixing a date for the pre-trial conference ● directing the parties to file and serve their respective pre-trial briefs to the adverse party at least 3 days before the date of pre-trial; and ● requiring the respondent to present the minor before the court. CONTENTS OF PRE-TRIAL BRIEF 1. A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms; 2. A concise statement of their respective claims together with the applicable laws and authorities; 3. Admitted facts and proposed stipulations of facts; 4. The disputed factual and legal issues; 5. All the evidence to be presented, briefly stating or describing its nature and purpose; 6. The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and 7. Such other matters as the court may require to be included in the pre-trial brief. PROVISIONAL ORDER AWARDING CUSTODY AND ORDER OF PREFERENCE 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. Order of preference shall be observed in the award of custody: 1. Both parents jointly;

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2.

3.

4. 5. 6.

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; The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

BEST INTEREST OF THE MINOR In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. NOTE: “Best interest of the minor” refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development.

INTERIM RELIEFS 1. Temporary Visitation Rights ● The court, in its order, awards provisional custody appropriate visitation rights to the non-custodial parent or parents, ○ UNLESS: the court finds said parent or parents unfit or disqualified. ● 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 provided it does not prejudice the visitation rights of the non-custodial parent or parents. 2.

Hold Departure Order The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. ● 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, directing it not to allow the departure of the minor from the Philippines without the permission of the court. ● The Family Court issuing the hold departure order shall furnish DFA and the Bureau of Immigration and Deportation of the DOJ a copy of the hold departure order within 24 hours from its issuance and through the fastest available means of transmittal. Recall of Hold Departure Order

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The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties after summary hearing, as may be necessary for the best interests of the minor. 3.

Protection Order The court may issue a Protection Order requiring any person: A. 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 designated by the court; B. 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; C. To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor; D. 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; E. 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; and F. To comply with such other orders as are necessary for the protection of the minor.

JUDGMENT The 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 for children. APPEAL General Rule: No appeal from the decision shall be allowed Exception: 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 thereof on the adverse parties. CONFIDENTIALITY OF PROCEEDINGS The hearings on custody of minors may, at the discretion of the court, be closed to the public and the records of the case shall not be released to non-parties without its approval. WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

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a) APPLICABILITY The writ applies where rightful custody over a minor is withheld from a person lawfully entitled thereto, and where the grant of custody to the latter serves the best interest of the minor child. WHO MAY FILE It may be filed by any person claiming such right. WHERE TO FILE The petition for a writ of habeas corpus involving custody of minors is filed with: 1. Family Court (enforceable within its judicial region to which the Family Court belongs) 2. Regular court in the absence of the presiding judge of the Family Court ● BUT: the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty) 3. Appropriate regular courts in places where there are no Family Courts. 4. Supreme Court, Court of Appeals, or with any of its members (enforceable anywhere in the Philippines) RETURN OF THE WRIT 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. NOTE: 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, February 5, 2010)

E. CHANGE OF NAME (RULE 103) A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. (Republic v. CA, 209 SCRA 189) NATURE It is a proceeding in rem and as such, strict compliance with jurisdictional requirements, particularly on publication, is essential to vest the court with jurisdiction. NOTE: Change of name is a privilege and not a right. For this purpose, the only name that may be changed is the true or official name as recorded in the civil register. GROUNDS FOR CHANGE OF NAME To justify a request for change of name, petitioner must show not only some proper or compelling reason, but also that he will be prejudiced by the use of his true and official name. (Festin) Among the grounds for change of name which have been held valid are:

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When the name is ridiculous, dishonorable, or extremely difficult to write or pronounce b) When the change results as a legal consequence, as in legitimation c) When the change will avoid confusion d) When one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody 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 (In re: Petition for change of name and/or correction/cancellation of entry in civil registry of Julian Lin Carusalan Wang, 2005) CORRECTION DISTINGUISHED FROM CHANGE OF NAME Correct: make or set a right, remove errors Change: replace something with another CLERICAL ERROR Error which is visible to the eye or obvious to the understanding; mistake in copying or writing; misspelling or misstatement

CONSEQUENCES OF CHANGE OF NAME • •

Merely changes the word/s by which the person is identified Does not change, eliminate, nor create family rights and duties where none exists before

WHEN PROCEEDINGS BECOME ADVERSARIAL • •

When the other party has been warned and given opportunity to oppose or contest the petition. This is satisfied by issuing notices to proper party and publication (Lucas v. Lucas, G.R. No. 190710, June 6, 2011)

F. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (Rule 108) NATURE A petition for correction is an action in rem. The decision on the petition binds not only the parties thereto but the whole world. Notice is thru publication. It is the publication of such notice that brings the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. NOTE: Rule 108 may also be filed to recognize foreign judgment TWO-NOTICE RULE 1. Notice given to persons named in the petition (Rule 108, Section 4)

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Notice through publication, deemed given to persons not named but have interest in the petition (Rule 108, Section 5)

REQUISITES WHEN SUBSEQUENT PUBLICATION OF NOTICE OF HEARING CURES THE PETITION’S LACK OR FAILURE TO IMPLEAD AFFECTED PARTIES 1. Earnest efforts were made by Petitioners in bringing to court all possible interested parties; 2. The parties themselves initiated the corrections proceedings; 3. No actual or presumptive awareness of the existence of the interested parties; or 4. When a party is inadvertently left out. (Almojuela v. Republic of the Philippines, 2016) ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108 Under Rule 108 Sec. 2 the entries are: a) Births b) Marriages c) Deaths d) Legal separations e) Judgments of annulments of marriage f) Judgments declaring marriages void from the beginning g) Legitimations h) Adoptions i) Acknowledgments of natural children j) Naturalization k) Election, loss, recovery of citizenship l) Civil interdiction m) Judicial determination of filiation n) Voluntary emancipation of a minor o) Changes of name

G.

CLERICAL ERROR LAW ( R.A. NO. 9048)

CORRECTIONS THAT CAN BE MADE • Clerical and typographical errors in any civil registry document, except corrections involving sex, age, nationality and status • Change of first name WHO MAY FILE Only by a person who has direct and personal interest in the correction of the first name VENUE Local Civil Registrar where the record containing the clerical error or first name to be corrected is kept. CONDITIONS FOR CHANGE OF FIRST NAME (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or, (3) The change will avoid confusion.

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A. GENERAL MATTERS CRIMINAL JURISDICTION Criminal jurisdiction is the authority of the court to hear and try a particular offense and impose punishment for it. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION: 1. Jurisdiction over the subject matter 2. Jurisdiction over the territory 3. Jurisdiction over the person of the accused JURISDICTION OVER THE SUBJECT MATTER The offense should be one which the court is by law authorized to take cognizance of.

CRIMINAL PROCEDURE

Jurisdiction over the subject matter is conferred by law and not by the Rules of Court. The conferment must be clear and it cannot be presumed. DETERMINATION OF JURISDICTION OVER THE SUBJECT MATTER: 1. By the allegations in the complaint or information, and not by the evidence presented during trial. 2. By the penalty imposable by law on the offense, and not the penalty actually imposed after trial. 3. By the law in effect at the time of the institution of the criminal action, and not the law in effect at the time of the commission of the offense. 4. Principle of Adherence of Jurisdiction or Continuing Jurisdiction JURISDICTION OVER THE TERRITORY The offense must have been committed or any one of its essential ingredients (transitory offense) should have taken place within the territorial jurisdiction of the court. Territorial jurisdiction is determined by the geographical limits of the territory over which the court presides. In criminal cases, venue is jurisdictional and a court is bereft of jurisdiction to try an offense committed outside of its limited territory. If the court has no territorial jurisdiction, it would still be deemed as acting without jurisdiction even if, under the law, the offense is one within its subject matter jurisdiction. JURISDICTION OVER THE PERSON OF THE ACCUSED The person charged with the offense must have been arrested or apprehended, with or without a warrant, or has voluntary appeared or submitted himself to the jurisdiction of the court. Voluntary submission is accomplished by seeking an affirmative relief, or by filing a motion or other pleading requiring the exercise of the court’s jurisdiction, or appearing for arraignment or entering trial. NOTE: Making a special appearance to question the jurisdiction of the court over the person of the accused is not voluntary appearance.

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Custody of the law is not necessarily being under the jurisdiction of the court. Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. Custody of the law is literally custody over the body of the accused. CUSTODY OF THE LAW VIS-À-VIS JURISDICTION OVER THE PERSON: Custody of the Law One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person. Not required for the adjudication of reliefs sought except in applications for bail which requires that the applicant be under the custody of the law before the application may be acted upon. NOTE: An application for or admission to bail does not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea.

Jurisdiction Over the Person of the Accused One can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law.

Required for the adjudication of reliefs sought.

JURISDICTION OVER THE SUBJECT MATTER VIS-ÀVIS JURISDICTION OVER THE ACCUSED Jurisdiction Over the Subject Matter Jurisdiction over the offense charged.

Jurisdiction Over the Person of the Accused Jurisdiction over the person charged.

It is conferred by law.

It is acquired by a warrant of arrest, by voluntary appearance or submission to the court, or by consent of the accused or failure to object to the court’s jurisdiction.

General Rule: An objection that the court has no jurisdiction over the subject matter may be raised or considered motu proprio at any stage of the proceedings or on appeal.

An objection can be made through a special appearance to question the jurisdiction of the court over the person of the accused. If he fails to make a timely objection, he will be deemed to have waived the same.

Exception: A party may be estopped from questioning the jurisdiction of the court for reasons of public policy when he initially invokes the court’s jurisdiction and then later on repudiates the same. (Tijam v. Sibonghanoy, 1968)

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JURISDICTION OF CRIMINAL COURTS MTC, MeTC, MCTC Exclusive original jurisdiction Except in cases falling within the exclusive jurisdiction of the RTC and Sandiganbayan: (1) Violations of city or municipal ordinances committed within their respective territorial jurisdiction (Sec. 32(1), B.P. 129); (2) Offenses punishable with imprisonment not exceeding six (6) years, irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof (Sec. 32(2), B.P. 129); (3) Offenses involving damage to property through criminal negligence (Sec. 32(2), B.P. 129); (4) (5) (6)

(7)

(8)

RTC Exclusive original jurisdiction Except in cases falling within the exclusive and concurrent jurisdiction of the Sandiganbayan: (1) All criminal cases not within the exclusive jurisdiction of any court, tribunal or body (Sec. 20 B.P. 129);

Summary Procedure Violations of traffic laws, rules, or regulations; Violations of rental law; Cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six (6) months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; Offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000; Violations of B.P. 22 (A.M. 0011-01-SC, 2003); Special Jurisdiction

(9)

Application for bail in criminal cases in the absence of all RTC judges in a province or city. (Sec. 35, B.P. 129)

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(2)

(3)

Appellate jurisdiction All cases decided by the MTC within its territorial jurisdiction (Sec. 22, B.P. 129); Special jurisdiction Criminal cases as designated by the SC;

Jurisdiction under specific laws Criminal and civil aspects of written defamation (Art. 360, RPC); (5) Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years, or where one or more of the victims is a minor at the time of the commission of the offense (R.A. 9344); (6) Cases against minors cognizable under the Dangerous Drugs Act, as amended (R.A. 8369); (7) Violations of R.A. 7610; (8) Violations of P.D. 957 (Sale of Subdivision Lots and Condominiums); (9) Cases of domestic violence against women and children (R.A. 8369); (10) Violations of intellectual property rights (A.M. 03-03-03SC); (11) Money laundering cases (R.A. 9160), except those committed by public officers and private persons who are in conspiracy with such public officer and who shall be under the jurisdiction of the Sandiganbayan. (4)

Sandiganbayan Exclusive original jurisdiction (1) Violations of R.A. 3019 (Anti-Graft and Corrupt Practices Act), and R.A. 1379 (Forfeiture of Property Unlawfully Acquired), and Title VII, Book II, RPC (Crimes Committed by Public Officers) where one or more of the accused are officials occupying the following positions, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: a. Officials of the executive branch occupying the positions of regional director and higher (Grade “27” and higher), specifically including: i. Provincial governors, vicegovernors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; ii. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurer, assessors, engineers and other city department heads; iii. Officials of the diplomatic service occupying the position of consul and higher; iv. Philippine army and air force colonels, naval captains and all officers of higher rank; v. PNP while occupying the position of provincial director and senior superintendents or higher; vi. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; vii. Presidents, directors or trustees, or managers of GOCCs, state universities or educational institutions or foundations; b. Members of Congress and officials thereof classified as Grade “27” and up; c. Members of the Judiciary; d. Chairmen and members of Constitutional Commissions; e. All other national and local officials classified as Grade “27” and higher; (2) Other offenses or felonies whether simple or complexed with other crimes committed by those mentioned in (a) in relation to their office;

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(3) (4)

Civil and criminal cases filed pursuant to and in connection with Executive Orders 1, 2, 14 and 14-A; Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunction, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, provided that jurisdiction over these petitions shall not be exclusive of the SC;

Exclusive appellate jurisdiction (5)

(6)

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Final judgments, resolutions or orders of the RTC whether in the exercise of its original or appellate jurisdiction. Exclusive jurisdiction Private individuals who are charged as co-principals, accomplices or accessories with the public officers or employees shall be tried jointly in the proper courts which exercise exclusive jurisdiction over them.

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CASES COGNIZABLE BY SANDIGANBAYAN The jurisdiction of the Sandiganbayan is not confined to violations of the Anti-Graft and Corrupt Practices Act. It has jurisdiction over offenses or violations under R.A. 1379 and Chapter II, Sec. 2, Title VII, Book II of the RPC.

7.

The salary grade of “27” or higher has no reference to provincial governors, vice governors or members of the sangguniang panlalawigan, sangguniang panlungsod, directors or managers of GOCCs, city mayors, vice mayors, city treasurers, assessors, engineers, trustees of state universities, and other officials enumerated in Sec. 4(a)(1) of P.D. 1606. Those enumerated are subject to the jurisdiction of the Sandiganbayan regardless of salary grades. (Inding v. Sandiganbayan, 2004)

10.

It is of no moment that the position of petitioner was merely classified as salary grade 26. While the first part of Sec. 4 of P.D. 1606 covers only officials of the executive branch with the salary grade 27 and higher, the second part thereof “specifically includes” other executive officials whose positions may not be of grade 27 and higher but who are, by express provision of law, placed under the jurisdiction of said court. (Geduspan v. People, 2005) Compensation is not an essential element of a public office and is merely incidental to the public office. (Serana v. Sandiganbayan, 2008) To make an offense one committed in relation to the office, the relation has to be such that, in the legal sense, the offense cannot exist without the office. (Montilla v. Hilario, 1951) Even if the position is not an essential ingredient of the offense charged, if the information avers the intimate connection between the office and the offense, this would bring the offense within the definition of an offense “committed in relation to the public office.” (Sanchez v. Demetriou, 1993)

WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION General Rule: The prosecution of a criminal case may not be enjoined by prohibition or injunction, whether preliminary or final, because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society (Domingo v. Sandiganbayan, 2000). Exceptions: 1. When necessary for the protection of the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; 3. Where there is a prejudicial question which is subjudice; 4. When 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;

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8. 9.

11.

Where court has no jurisdiction over the offense; Where it is a case of persecution rather than prosecution; Where the charges are manifestly false and motivated by vengeance; Where there is no prima facie case against the accused and a motion to quash on that ground has been denied; Where preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioner.

B. PROSECUTION OF OFFENSES (RULE 110) CRIMINAL ACTIONS The parties to criminal action are the People of the Philippines and the accused. The private offended party is regarded merely as a witness for the state, and his interest is limited to the civil liability. General Rule: If there is a dismissal of a criminal case or an acquittal of the accused, it is only the Office of the Solicitor General (OSG) that may bring an appeal before the CA or SC on the criminal aspect representing the People. (People v. Nano, 1992) Exception: In cases elevated to the Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People, except in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14-A, issued in 1986. (Sec. 4, R.A. 8249) The private complainant or the offended party may file an appeal or a special civil action without the intervention of the OSG but only insofar as the civil liability of the accused is concerned. HOW INSTITUTED The institution of a criminal action depends upon whether or not the offense is one which requires a preliminary investigation. Preliminary investigation is required for offenses where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.

When preliminary investigation is required When preliminary investigation is not required

How Instituted By filing the complaint with the proper officer for the purpose of conducting the preliminary investigation.

Either by: (1) Filing the complaint or information directly with the MTC, MeTC and MCTC; or (2) Filing the complaint with the office of the prosecutor.

NOTE: There is no direct filing of a complaint or information with the RTC because its jurisdiction covers offenses which require preliminary investigation.

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EFFECT OF INSTITUTION ON PRESCRIPTIVE PERIOD The institution of the criminal action interrupts the running of the prescriptive period of the offense charged unless otherwise provided by special laws. The running of the period of prescription is interrupted with the filing of the action even if the court in which the action was first filed is without jurisdiction.

parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. If the offended party is a minor, she has the right to initiate the prosecution of the offense independently of her parents, grandparents or guardian except if she is incompetent or incapable of doing so. If the minor fails to initiate the same, the complaint may be filed by the minor’s parents, grandparents or guardian.

WHO MAY FILE FOR NON-PRIVATE CRIMES Persons authorized to file a complaint (Sec. 3, Rule 110, Rules of Court): 1. The offended party; 2. Any peace officer; or 3. Other public officer charged with the enforcement of the law violated.

The offended party must not have expressly pardoned the offender.

Persons authorized to file an information (Sec. 4, Rule 110, Rules of Court): 1. City or provincial prosecutor and their assistants; or 2. Duly appointed special prosecutors.

Only the offended party may initiate the criminal action.

REMEDIES OF THE OFFENDED PARTY IF THE PROSECUTOR REFUSES TO FILE AN INFORMATION 1. 2. 3. 4. 5.

Mandamus, in case of grave abuse of discretion; A new complaint before the court having jurisdiction over the offense; Take up the matter with the DOJ Secretary in accordance with the Revised Administrative Code; Institute an administrative charge against the prosecutor; Criminal action against the prosecutor with the corresponding civil action for damages.

WHO MAY FILE FOR PRIVATE CRIMES Private crimes may only be prosecuted by a complaint filed by the private offended party (Sec. 5, Rule 110, Rules of Court). WHAT ARE PRIVATE CRIMES

DEFAMATION The defamation under the Rules consists in the imputation of the offenses of adultery, concubinage, seduction, abduction and acts of lasciviousness.

CRIMINAL ACTIONS; WHEN ENJOINED General Rule: Criminal prosecutions may not be restrained or stayed by injunction, preliminary or final (Domingo v. Sandiganbayan, 2000). Exceptions: 1. To afford adequate protection to the constitutional rights of accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is prejudicial question which is subjudice; 4. When the prosecution is under an invalid law, ordinance or regulation; 5. When the court has no jurisdiction over the offense; 6. When it is a case of persecution; 7. When the charges are manifestly false and motivated by lust for vengeance; 8. When there is clearly no prima facie case against accused and a motion to quash on the ground has been denied.

of

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.

ADULTERY AND CONCUBINAGE The complaint must have been filed by the offended spouse against both guilty parties, unless one of them is no longer alive.

INFORMATION An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.

The offended party must not have expressly or impliedly consented to the offense or has pardoned the offenders.

If the information was signed and filed by one who had no authority to sign and file the same, the dismissal of the information would not be a bar to a subsequent prosecution under a subsequent valid information. Jeopardy does not attach where an accused pleads guilty to a defective indictment.

1. 2. 3.

Adultery and concubinage; Seduction, abduction, lasciviousness; and Defamation.

and

acts

SEDUCTION, ABDUCTION, AND ACTS OF LASCIVIOUSNESS The complaint must have been filed by the offended party or her parents, grandparents or guardian. If the offended party dies or becomes incapacitated before she can file the complaint and she has known

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DISTINCTIONS BETWEEN INFORMATION: Complaint A sworn written statement.

A

COMPLAINT

AND

Information An accusation in writing.

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Charges a person with an offense. Subscribed by the offended party, any peace officer, or other public officer Subscribed by the charged with the prosecutor. enforcement of the law violated. If a preliminary investigation is required, it is filed with the prosecutor. If no preliminary Filed with the court. investigation is required, it is filed either with the prosecutor or with the court. Must be sworn, hence, Requires no oath. under oath. Filed in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved. CONTROL OF PROSECUTION General Rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the public prosecutor. (Sec. 5, Rule 110, Rules of Court) Exceptions: 1. When the prosecutor assigned is not available, the action may be prosecuted by the offended party, any peace officer, or public officer charged with the enforcement of the law violated. 2. When the offense is a violation of a special law, the same may be prosecuted by the public prosecutor with the assistance of a special prosecutor from an administrative agency of special competence. 3. A private prosecutor may solely prosecute the criminal action if he is authorized in writing by either the Chief of the Prosecution Office or the Regional State Prosecutor. The written authorization must be approved by the court. NOTE: The authority of the private prosecutor in the 3rd exception may be revoked or withdrawn. Whenever an offended party intervenes in the prosecution of a criminal action, his intervention must always be subject to the direction and control of the prosecuting official. (Lee Pue Lion v. Chue Pue Chin Lee , 2013) The criminal action is prosecuted under the direction and control of the public prosecutor, which requires that the prosecutor must be present during the proceedings. (People v. Beriales, 1976) SUFFICIENCY OF COMPLAINT OR INFORMATION A complaint or information is deemed sufficient if it contains the following: 1. The name of the accused; if the offense is committed by more than one person, all of them shall be included; 2. The designation of the offense given by statute;

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3. 4. 5. 6.

The acts or omissions complained of as constituting the offense; The name of the offended party; The approximate date of the commission of the offense; and The place where the offense was committed. (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 to enable him to suitably prepare for his defense. Substantial defects in the information cannot be cured by evidence which would jeopardize the right of accused to be informed of the true nature of the offense he is being charged with (Ilo v. Court of Appeals, 1960). General Rule: Objections relating to the form of the complaint or information cannot be made for the first time on appeal. The accused-appellant should, before arraignment, file either for a motion for bill of particulars or a motion to quash. Failure to do so would amount to a waiver of his objections to any format defect in the information. Exception: Where the objection is based on lack of jurisdiction over the subject matter, the same may be raised or considered motu proprio by the court at any stage of the proceedings or on appeal. NAME OF THE ACCUSED The rules in designating the name of the accused are as follows (Sec. 7, Rule 110): 1. The name and surname must be stated, or any appellation or nickname by which he has been or is known. 2. If his name cannot be ascertained, he must be described under a fictitious name accompanied by a statement that his true name is unknown. 3. If, later, his true name is known, his true name shall be inserted in the complaint or information and in the records of the case. In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified. DESIGNATION OF THE OFFENSE In designating the offense, the following rules must be observed: 1. The name given to the offense by statute must be stated in the complaint or information. If the statute gives no designation, then reference shall be made to the section or subsection punishing it. 2. An averment of the acts or omissions constituting the offense must be included in the designation.

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3.

The complaint or information shall specify the qualifying and aggravating circumstances of the offense.

the particular place where it was committed constitutes an essential element of the offense or is necessary for its identification (Sec. 10, Rule 110).

The specific acts need not be described in detail 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, 2009)

DUPLICITY OF THE OFFENSE Duplicity presupposes that there is a joinder of two or more separate and distinct offenses in one and the same information or complaint.

Even if there is no designation of the offense, the information is not necessarily vitiated if the facts alleged clearly recite the facts constituting the crime charged.

General Rule: A complaint or information must charge only one offense.

The accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in the information files against him. What controls is not the title of the information or the designation of the offense but the actual facts recited in the information. The accused may be convicted of a crime more serious than that named in the title or preliminary part 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, 1996). NEGATIVE AVERMENTS General Rule: Where the statute penalizes generally the acts therein defined and is intended to apply to all persons indiscriminately, the information is sufficient even if does not allege that accused falls within the excepted situation. Exception: Where the statute alleged to have been violated applies only to a specific class of persons and to special conditions, the information must allege facts establishing that the accused falls within the specific class affected. CAUSE OF THE ACCUSATION The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The information must allege clearly and accurately the elements of the crime charged to inform the accused of the nature of the accusation against him. The following must be averred in the information: 1. The offense being charged; 2. The acts or omissions complained of as constituting the offense; and 3. The qualifying and aggravating circumstances.

Exception: When the law prescribes a single punishment for various offenses, such as for: 1. Complex crimes; 2. Special complex crimes; 3. Continuous crimes; 4. Crimes susceptible of being committed in various modes; and 5. Crimes of which another offense is an ingredient. Duplicity of the offense is ground for a motion to quash. An objection to a complaint or information which charges more than one offense must be timely interposed before trial (Sec. 3, Rule 120). Failure to object on the ground of duplicity of the offense constitutes a waiver and the accused may be found guilty of as many offenses as those charged and proved during the trial. AMENDMENT OF THE COMPLAINT OR INFORMATION An amendment is the correction of an error or an omission in a complaint or an information. It is effected by adding or striking out an allegation or the name of any party, or by correcting a mistaken or inadequate allegation or description in any other respect. WHEN AN AMENDMENT MAY BE MADE 1. Before plea - With or without leave of court 2. After plea - With leave of court AMENDMENT BEFORE PLEA When the amendment is only in Without leave of form or substance. court

With leave of court

When the amendment: (1) Downgrades the nature of the offense charged; or (2) Excludes any accused from the complaint or information.

DATE OF THE COMMISSION OF THE OFFENSE It is not necessary to state the precise date the offense was committed except when the date if commission is a material element of the offense. The offense may, thus, be alleged to have been committed on a date as near as possible to the actual date of its commission.

AMENDMENT AFTER PLEA Any formal amendment may only be made under two (2) conditions: 1. Leave of court must be secured; and 2. The amendment does not cause prejudice to the rights of the accused. (Sec. 14, Rule 110)

PLACE OF COMMISSION OF THE OFFENSE The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of the essential ingredients occurred at some place within the jurisdiction of the court, unless

The following are mere formal amendments: 1. A new allegation which relates to the range of penalty that the court might impose in the event of conviction.

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2. 3. 4. 5.

6.

7.

One which does not charge another offense distinct from that already charged. Additional allegations which do not alter the prosecution’s theory of the case. One which does not adversely affect any substantial right of accused. One that merely adds specification to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information. A mere change in the date of the commission of the crime, if the disparity is not great. (Kummer v. People, 2013) A mere change in the offense charged, with no changes being made in the recital of the facts constituting the offense charged or in the determination of the jurisdiction of the court (Pacoy v. Cajigal, 2007).

Any substantial amendments are not allowed at this stage, except if the same is beneficial to the accused. WHEN AN AMENDMENT IS FORMAL OR SUBSTANTIAL Formal Amendment Substantial Amendment It does not change the It is when a defense, under nature of the crime alleged the original complaint or in the information, does information, is no longer not affect the essence of available after the the offense, cause surprise, amendment is made, and or deprive the accused of when any evidence the an opportunity to meet the accused might have would new averment. be inapplicable to the complaint or information, as amended. It does result in any prejudice to the other party.

The rights of the accused are prejudiced.

Except when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, there is a need for another arraignment of the accused under the amended information. SUBSTITUTION OF THE COMPLAINT OR INFORMATION A complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense. In such a case, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Pacoy v. Hon. Cajigal, 2007) LIMITATIONS TO THE RULE ON SUBSTITUTION: 1. No judgment has been rendered yet. 2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein. 3. The accused should not be placed in double jeopardy. Amendment

Substitution

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May involve either formal or substantial changes. If it is made before plea and the amendment is only as to form or in substance, it can be effected without leave of court. If only as to form, no preliminary investigation and retaking of the plea is needed. It refers to the same offense charged in the original information or to an offense necessarily included in the original charge.

Involves only substantial changes.

It must be with leave of court.

Another preliminary investigation is required and the accused has to plead anew to the new information. It involves a different offense which does not include or is not necessarily included in the original charge.

NOTE: Since the substitution of the complaint or information involves a different offense, the accused cannot claim double jeopardy. VENUE OF CRIMINAL ACTIONS In criminal cases, venue is jurisdictional and the court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, changed by agreement of the parties, nor can it be consented to by the defendant. The venue is determined by the allegations in the complaint or information, and the place of the commission of the crime must be proven during trial. General Rule: The action must be instituted and tried in the courts of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. Exceptions: 1. Felonies under Art. 2 of the RPC Cognizable by the Philippine courts even if committed outside the territory of the Philippines 2. When the SC orders a change of venue or place of trial to avoid a miscarriage of justice 3. Complex crimes The RTC of any province in which any one of the essential elements of the offense had been committed has jurisdiction to take cognizance of the offense. 4. Transitory or Continuing Offense (i.e. B.P. 22 cases) The venue is in the place where one of its essential elements was committed. 5. Offenses committed on board a vessel in the course of its voyage The action may be instituted and tried in the court of the first port of entry, or in the court of the municipality or territory where the vessel passed during the voyage.

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6. 7. (a) (b) (c) 8. -

The places of departure and arrival are not included as proper venues. When the case is cognizable by the Sandiganbayan Libel The action may be instituted in: The RTC of the city or province where the libelous article is printed and first published; If the offended party is a private individual, where the said individual actually resided at the time of the commission of the offense; If the offended party is a public official, where the latter holds office at the time of the commission of the offense; Piracy The venue of piracy has no territorial limits.

INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION OF THE CRIMINAL ACTION General Rule: The offended party has the right to intervene by counsel in the prosecution of the criminal action, where the civil action for recovery of civil liability is instituted in the criminal action. Exceptions: 1. Where from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of the offended party; or 2. Where the offended party has waived his right to civil indemnity, has expressly reserved his right to institute a civil action or has already instituted said action. NOTE: The institution of an independent civil action does not deprive the offended party of the right to intervene in the civil action (i.e. quasi-delicts). By virtue of its independent character, the civil liability arising from the independent civil action is entirely separate and distinct from the civil liability under the RPC. The appointment of a private prosecutor is done by the offended party and is the mode by which he intervenes in the prosecution of the offense. However, such intervention is always subject to the direction and control of the public prosecutor.

C. PROSECUTION OF CIVIL ACTION (RULE 111) RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION General Rule: When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense shall be deemed instituted with the criminal action. The information need not state the civil liability. Exceptions: 1. When the offended party waives the civil action; 2. When the offended party reserves his right to institute a separate civil action; 3. When the offended party institutes a civil action prior to the criminal action; 4. In instances when no civil damage results from an offense (e.g. espionage, violation of neutrality, flight to an enemy country, and

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5.

crime against popular representation). In such cases, no intervention of the offended party is allowed as there are no private offended parties; or Independent civil actions and quasi-delicts under Arts. 32, 33, 34 and 2176 of the Civil Code.

WHEN THE RESERVATION OF THE CIVIL ACTION IS MADE 1. Before the prosecution starts to present its evidence; and 2. Under circumstances affording the offended party a reasonable opportunity to make such reservation. WHEN RESERVATION NOT ALLOWED 1. In B.P. 22 cases (Sec. 1(b), Rule 111, Rules of Court); 2. In cases cognizable by the Sandiganbayan (P.D. 1606, as amended by Sec. 4, R.A. 8249); and 3. Tax cases (Sec. 7(b)(1), R.A. 9282). NOTE: While there is no right to reserve the filing of a separate civil action in B.P. 22 cases, there may still be a waiver of the civil action or the institution of the civil action prior to the criminal action. COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY CLAIM IN A CRIMINAL ACTION No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case. Any cause of action which could have been the subject thereof may be litigated in a separate civil action. (Sec. 1(a), Rule 111, Rules of Court) WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY A single act or omission that causes damage to an offended party may give rise to two (2) separate civil liabilities: 1. Civil liability ex delicto One arising from the criminal offense. 2.

Independent civil liability One that may be pursued independently of the criminal proceedings. It may or may not be based on an obligation arising from the act complained of as a felony.

Only the civil liability of the accused arising from the crime charged is deemed included in a criminal action. Civil actions referred to in Arts. 32, 33, 34 and 2176 of the Civil Code may be filed independently and separately from the criminal case at the same time, without suspension of either proceeding. Recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission may be prosecuted separately even without reservation. The reservation and waiver refer only to the civil action for the recovery of civil liability arising from the offense charged (DMPI Employees Credit Cooperative v. Velez, 2001). Even if a civil action is filed independently, the offended party may still intervene in the criminal prosecution in order to protect the remaining civil interest therein (Philippine Rabbit Bus Lines v. People, 2004).

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Neither is there a prejudicial question if the civil and criminal action can, according to law, proceed independently of each other. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action (People v. Consing, Jr., 2003).

3.

PROHIBITION ON DOUBLE RECOVERY In no case may the offended party recover damages twice for the same act or omission charged in the criminal action (Sec. 3, Rule 111, Rules of Court).

5.

WHEN SEPARATE CIVIL ACTION IS SUSPENDED After the filing of the criminal action, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. If the civil action is instituted before filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment in the criminal action has been rendered, as long as no judgment on the merits has yet been entered in the civil action. Exceptions: 1. In cases of independent civil actions based on Arts. 32, 33, 34 and 2176 of the Civil Code; 2. Where the civil action presents a prejudicial question; 3. Where the civil action is consolidated with the criminal action; and 4. Where the civil action is not one intended to enforce civil liability arising from the offense. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON HIS CRIMINAL LIABILITY Death of the accused prior to final judgment extinguishes his criminal liability (People v. Paras, 2014). EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON HIS CIVIL LIABILITY The case is dismissed Accused dies before without prejudice to any civil action against the arraignment estate of the deceased. Accused dies after The civil liability arising arraignment and during from the crime is the pendency of the extinguished. criminal action The above rule does not apply to independent civil action and civil liabilities arising from sources of obligation not arising from the offense charged. They may be continued against the estate, legal representative, or heirs after proper substitution. OTHER RULES ON NON-EXTINGUISHMENT OF LIABILITIES 1. Novation does not extinguish criminal liability. 2. The extinction of the penal action does not carry with it the extinction of the civil action (Sec. 2, Rule 111). Exception: When the acquittal is made on the ground that the accused is not the author of the act or omission complained of

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4.

Payment of civil liability does not extinguish criminal liability. A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action. The acquittal in a criminal case does not carry with it relief from administrative liability.

PREJUDICIAL QUESTION A prejudicial question is that which arises in a case, the resolution of which is the logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It is determinative of the criminal case, but the jurisdiction to try and resolve it is lodged in another tribunal. It is based on a fact distinct and separate from the crime but is so intimately connected with the crime that it determines the guilt or innocence of the accused. REQUISITES FOR A PREJUDICIAL QUESTION 1. The civil case must be instituted prior to the criminal action; 2. The civil case involves facts intimately related to those upon which the criminal prosecution would be based; 3. The issue in the civil case is determinative of the issue in the criminal case; 4. Jurisdiction to try said question must be lodged in another tribunal. WHEN A PREJUDICIAL QUESTION MAY NOT BE INVOKED: 1. When both cases are criminal; 2. When both are civil; 3. When both cases are administrative; 4. When one case is administrative and the other civil; or 5. When one case is administrative and the other criminal. The issue that leads to a prejudicial question is one that arises in the civil case and not in the criminal case. It is the issue in the civil case which needs to be resolved first before it is determined whether or not the criminal case should proceed or whether or not there should be a judgment of acquittal or conviction. As such, it is the criminal case that should be suspended. SUSPENSION OF THE CRIMINAL ACTION BY REASON OF PREJUDICIAL QUESTION A petition for the suspension of the criminal action is required. The same cannot be suspended motu proprio by the court or the investigating prosecutor. As such, the determination of the pendency of a prejudicial question should be made at the first instance in the criminal action, and not before the SC. (IBP v. Atienza, 2010) The petition for suspension is filed with: 1. The office of the prosecutor conducting the preliminary investigation; or 2. When the criminal action has been filed in court for trial, in the same court at any time before the prosecution rests (Sec. 6, Rule 111, Rules of Court).

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The filing for a petition for suspension does not require that the criminal case be already filed in court. It is sufficient that the case be in the stage of preliminary investigation as long as there has already been a previously instituted civil case. (Riano) General Rule: If the civil action is commenced before the institution of the criminal action, the civil action shall be suspended in whatever stage it may be found before judgment on the merits, once the criminal action is commenced. Exception: When there is a prejudicial question. The rule authorizing the suspension of the criminal action by reason of a prejudicial question does not prescribe the dismissal of the criminal action. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH CRIMINAL ACTION General Rule: There are no filing fees required for actual damages claimed unless required by the Rules. (Sec. 1(a), Rule 111) Filing fees are paid only when the offended party claims moral, nominal, temperate or exemplary damages, other than actual damages. When the amount of such damages is specified, the filing fees shall be paid upon the filing of the criminal action in court. If no amount is specified but any of such damages is subsequently awarded, the filing fees shall constitute a first lien on the judgment awarding such damages. (Sec. 1(a), Rule 111) Exception: In criminal actions for violation of B.P. 22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed and the filing fees shall be based on the amount of the check (Sec. 1(b), Rule 111, Rules of Court). In estafa cases, the filing fees shall be paid based on the amount involved (A.M. 04-2-04).

D. PRELIMINARY INVESTIGATION A preliminary investigation is an inquiry or proceeding the purpose of which is to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial (Sec. 1, Rule 112). NATURE OF RIGHT A 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, 1991) The holding of a preliminary investigation is not required by the Constitution. The right thereto is of a statutory character and may be invoked only when specifically created by statute (Marinas v. Siochi, 1981). But while the right is statutory rather than constitutional, since it has

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been established by statute, it becomes a component of due process in criminal justice. (Duterte v. Sandiganbayan, 1998) The right to preliminary investigation is a personal right which may be waived expressly or impliedly for failure to invoke the right prior to or at the time of the plea. (Benedicto v. CA, 2001) The absence of a preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused (People v. Madraga, 2000). The conduct of preliminary investigation is an executive function that the courts cannot interfere with in the absence of grave abuse of discretion (Salapuddin v. CA, 2013). Such function is lodged, at the first instance, with the public prosecutor and ultimately, with the Secretary of Justice. PURPOSES OF PRELIMINARY INVESTIGATION: 1. To inquire concerning the commission of a crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there is probable cause for believing him guilty, that the State shall take the necessary steps to bring him to trial. 2. To secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from an open and public accusation of crime, from the trouble, expense, and anxiety of a public trial, and also to protect the State from useless and expensive trials (Sausi v. Querubin, 1975). 3. To preserve the evidence and keep the witnesses within the control of the State. 4. To determine the amount of bail, if the offense is bailable (Callo-Claridad v. Esteban, 2013). PROBABLE CAUSE FOR THE FILING OF A COMPLAINT Probable cause pertains to facts and circumstances sufficient to support a well-founded belief that a crime has been committed and the accused is probably guilty thereof. Probable cause does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief and need not be based on clear and convincing evidence of guilt. It requires more than bare suspension but less than evidence to justify a conviction. A finding of probable cause may rest upon evidence which is not legally competent in a criminal trial. Thus, it may be based on hearsay so long as there is a substantial basis for crediting the hearsay. (Estrada v. Office of the Ombudsman, 2015) The validity and merits of a party’s defense and accusation, as well as the admissibility of testimonies and evidence, are better ventilated during the trial proper and not during a preliminary investigation. (Shu v. Dee, 2014)

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WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE The following are authorized to conduct a preliminary investigation (Sec. 2, Rule 112): 1. 2. 3.

Provincial or city fiscal and their assistants; National and Regional state prosecutors; Other officers as may be authorized by law. The COMELEC for election offenses punishable under the Omnibus Election Code; The Ombudsman for any illegal, unjust, improper or inefficient act or omission of any public officer or employee, office or agency; The PCGG with the assistance of the OSG and other government agencies.

NOTE: The House of Representatives has already approved House Bill No. 7375 which seeks to abolish the PCGG as of May 15, 2018. This, however, is yet to be signed into law. Judges of first level courts are not allowed to conduct preliminary investigations (A.M. No. 05-8-26-SC). The includes judges from the MTC, MCTC and RTC. CASES REQUIRING A PRELIMINARY INVESTIGATION A preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. (Sec. 1, Rule 112) INQUEST An inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. (Sec. 1, DOJ Rules on Inquest) General Rule: A preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the law prescribes a penalty of at least four (4) years, two (2) months, and one (1) day without regard to the fine. (Sec. 1, Rule 112) Exception: In cases where there is a valid warrantless arrest involving an offense which requires a preliminary investigation, the accused shall be required to undergo an inquest instead of a preliminary investigation. This proceeding is required before a complaint or information may be filed against the person arrested. (Sec. 6, Rule 112, Rules of Court as amended by A.M. No. 05-08-26-SC) Exceptions to the exception: 1. In the absence or unavailability of an inquest prosecutor in the place where the person was arrested, an inquest may be dispensed with and a complaint may be filed directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. (Sec. 6, Rule 112, Rules of Court as amended by A.M. No. 05-08-26-SC)

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2.

The person lawfully arrested without a warrant for an offense which requires a preliminary investigation may ask for a preliminary investigation before the complaint or information is filed. However, the following rules shall apply: a. The person arrested must sign a waiver in writing of the provisions of Art. 125 of the RPC (delay in the delivery of detained persons to the proper judicial authorities) in the presence of his counsel; b. The preliminary investigation must be terminated within fifteen (15) days from its inception. (Sec. 10, DOJ Rules on Inquest)

NOTE: The accused subject of a valid warrantless arrest cannot ask for a preliminary investigation if the penalty involved is less than four (4) years, two (2) months and one (1) day. If an information or complaint has already been filed, the person arrested may still ask for a preliminary investigation within five (5) days from the time he learns of its filing. If the accused asks for a preliminary investigation, the same may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case may be assigned. (Sec. 10, Part II, Manual for Prosecutors) The waiver of the provisions of Art. 125 of the RPC does not preclude the person arrested from applying for bail (Sec. 6, Rule 112, Rules of Court) since the person arrested is still under detention. This rule also applies even if no information has yet been filed against him. (Sec. 17(c), Rule 114, Rules of Court) An application for bail must be filed before and issued by the court in the province, city, or municipality where the person arrested is held. Inquest proceedings are proper only when the accused has been lawfully arrested without a warrant. Inquest Required when the accused has been lawfully arrested and detained without a warrant.

Purpose is to determine whether or not the person detained should remain under custody (legality of the arrest) and then charged in court. Not waivable. Conducted by a public prosecutor who is assigned inquest duties as an Inquest Officer. The inquest conducted must be for the offense for

Preliminary Investigation Required for an offense where the law prescribes a penalty of at least four (4) years, two (2) months, and one (1) day without regard to the fine. Purpose is to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. Waivable. Conducted by a public prosecutor or other officers authorized by law. The investigation conducted must be for the

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which the detainee was arrested. The accused may apply for bail since he is already under the custody of the law.

offense for which the complaint was filed. The accused may apply for bail as a matter of right as long as the offense for which he is charged is one not punishable by death, reclusion perpetua, or life imprisonment.

RESOLUTION OF THE INVESTIGATING PROSECUTOR 1. If the investigating prosecutor finds probable cause to hold the respondent for trial, he shall prepare both a resolution and information. The information shall contain a certification by the investigating officer under oath in which he shall certify to the following: a. He or an authorized officer has personally examined the complainant and his witnesses; b. There is reasonable ground to believe that a crime has been committed; c. The accused is probably guilty thereof; d. The accused was informed of the complaint and of the evidence submitted against him; and e. He was given an opportunity to submit controverting evidence. (Sec. 4, Rule 112, Rules of Court) 2. If the investigating prosecutor finds no probable cause, he shall recommend the dismissal of the complaint. An information shall still be considered valid despite the absence of a certification for the reason that such certification is not an essential part of the information itself. (Alvizo v. Sandiganbayan, 1993) What is not allowed is the filing of an information without a preliminary investigation having been conducted. REVIEW 1. Within five (5) days from the issuance of the resolution, the record of the case shall be forwarded to the Chief State Prosecutor, Regional State Prosecutor, Provincial/City Prosecutor, or to the Ombudsman or his deputy. (Sec. 4, Rule 112) Note: The prior written authority or approval of the said officers are required before any complaint or information may be filed or dismissed. 2.

Within ten (10) days from receipt of the resolution, the Chief State Prosecutor, Regional State Prosecutor, Provincial/City Prosecutor, or the Ombudsman or his deputy may reverse or affirm the resolution and shall immediately inform the parties of such action. (Sec. 4, Rule 112)

3.

Where the investigating prosecutor recommends the dismissal but his recommendation is disapproved by the Chief State Prosecutor, Regional State Prosecutor, Provincial/City Prosecutor, or the Ombudsman or his deputy on the ground that probable cause exists, the latter may:

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a. b.

4.

File the information himself; or Direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. (Sec. 4, Rule 112) Within fifteen (15) days from receipt of the assailed resolution, the aggrieved party may file a motion for reconsideration. (Sec. 3, NPS Rule on Appeal)

5.

Within fifteen (15) days from denial of the motion for reconsideration, the aggrieved party may appeal to the Secretary of Justice. (Sec. 1, NPS Rule on Appeal)

6.

The appeal before the Secretary of Justice shall not hold or prevent the filing of the corresponding information in court, unless the Secretary of Justice directs otherwise. However, the appellant and prosecutor may hold in abeyance the proceedings in court pending resolution of the appeal. (Sec. 9, NPS Rule on Appeal) Note: While an appeal before the Secretary of Justice does not prevent the filing of the information before the court, the proceedings itself may nonetheless be held in abeyance.

7.

The proper party, upon motion, may ask for the suspension of the arraignment if the petition for review of the resolution of the prosecutor is still pending. (Sec. 11(c), Rule 116)

8.

The resolution of the Secretary of Justice may be assailed by a petition for certiorari under Rule 65 of the Rules of Court before the CA on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction, and not a petition for review under Rule 43 of the same Rules. (Salapudin v. CA, 2013)

TAX AND TARIFF CASES For tax and tariff cases, a petition for certiorari under Rule 65 may be filed before the CTA. (BOC v. Devanadera, 2015) ADMINISTRATIVE APPEALS 1. Administrative appeals of the resolution of the Secretary of Justice may be brought before the Office of the President under the following conditions: a. The offense involved is punishable by reclusion perpetua to death; b. New and material issues are raised which were not previously presented before the DOJ and were not, hence, ruled upon; c. The prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution; and d. The appeal or petition for review is filed within thirty (30) days from notice. 2. Within fifteen (15) days from notice of an adverse decision by the Office of the President,

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3.

a verified petition for review under Rule 43 of the Rules of Court may be taken to the CA. The party aggrieved by the judgment, final order or resolution of the CA may file a petition for review on certiorari under Rule 45 of the Rules of Court to the SC.

NOTE: While judicial pronouncements do not allow an appeal to the CA under Rule 43 of the Rules of Court from the resolution of the Secretary of Justice, the appeal referred to in such pronouncements pertains only to a judicial appeal, and not an administrative appeal. RULINGS OF THE OMBUDSMAN IN CRIMINAL CASES In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65 of the Rules of Court on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. WHEN WARRANT OF ARREST MAY ISSUE Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor. Thereafter, he may take the following actions: If the evidence fails to establish probable cause

If the evidence establishes probable cause

The case shall be dismissed. A warrant of arrest shall be issued. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of an arrest warrant.

If a complaint or information was already filed pursuant to a lawful warrantless arrest or a previous valid arrest pursuant to other legal processes

A commitment order shall be issued instead of a warrant of arrest.

If the evidence engenders a doubt as to the existence of probable cause

An order for the submission of additional evidence within five (5) days from notice shall be issued.

Once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. (Crespo v. Mogul, 1987) While the judge may rely on the fiscal’s resolution, the same is not conclusive on him as the issuance of an arrest warrant calls for the exercise of judicial discretion. The judge may require the submission of affidavits of witnesses to aid him in arriving at the proper conclusion, or he may require the fiscal to conduct further preliminary investigation or reinvestigation. When a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the Secretary of Justice is filed, the trial court shall make

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an independent assessment of the merits of such motion as it has already acquired jurisdiction over the case. While the Secretary’s ruling is persuasive, it is not binding on the courts. (Lanier v. People, 2014) The issuance of a warrant of arrest implies the existence of a finding of probable cause by the court. The option to order the prosecutor to present additional evidence is not mandatory. The court’s first option is for it to immediately dismiss the case if the evidence on record clearly fails to establish probable cause. (Mendoza v. People, 2014) The order of the court dismissing a case for lack of probable cause is a final order since it disposes of the case, terminates the proceedings, and leaves the court with nothing further to do with respect to the case. (Cajipe v. People, 2014) As such, the proper remedy is an appeal, and not a petition for certiorari. WHEN WARRANT OF ARREST IS NOT NECESSARY 1. When a complaint or information has already been filed pursuant to a lawful warrantless arrest (Sec. 5(c), Rule 112); 2. When the accused is charged for an offense punishable only by fine (Sec. 5(c), Rule 112); or 3. When the case is subject to the Rules on Summary Procedure (Sec. 16, 1991 Rules on Summary Procedure) unless he fails to appear whenever required. (Uy v. Javellana, 2012) CASES NOT REQUIRING A PRELIMINARY INVESTIGATION A criminal case within the scope of the Revised Rule on Summary Procedure does not require a preliminary investigation prior to the filing of the same. A criminal case within the scope of this Rule shall be commenced either by: 1. Filing a complaint or information in the MTC; or 2. In Metro Manila and other chartered cities, filing an information, except when the offense cannot be prosecuted de officio. Where a preliminary investigation is not required because the imposable penalty is less than four (4) years, two (2) months and one (1) day, a criminal action may be initiated by: 1. Filing a complaint directly with the prosecutor; or 2. Filing a complaint or information with the MTC. For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where accused fails to appear after being summoned. If the complaint is filed with the prosecutor involving an offense punishable by imprisonment of less than 4 years, 2 months and 1 day, the procedure in Sec. 3(a), Rule 112 of the Rules of Court shall be observed. If the complaint is filed with the MTC, the same procedure under Sec. 3(a), Rule 112 of the Rules of Court shall be observed.

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REMEDIES OF THE ACCUSED IF THERE WAS NO (OR AN IRREGULARITY) PRELIMINARY INVESTIGATION 1. Question the regularity or absence of a preliminary investigation before he enters his plea; 2. Insist on a preliminary investigation; 3. File a motion for reinvestigation or motion to remand the case to the office of the prosecutor to conduct a preliminary investigation; 4. File a motion for judicial determination of probable cause; 5. File a certiorari, if refused; or 6. Raise lack of PI as error on appeal.

arrest the other, and that there be an intent on the part of the other to submit. (Luz v. People, 2012) Upon a lawful arrest, the following may be confiscated from the person arrested (search incidental to a lawful arrest): 1. Objects subject of the offense or used or intended to be used in the commission of the crime; 2. Fruits of the crime; 3. Those which might be used by the arrested person to commit violence or to escape; 4. Dangerous weapons and those which may be used as evidence in the case.

The absence of a preliminary investigation does not affect the court’s jurisdiction over the case nor does it impair the validity of the information or otherwise, renders it defective. (Enriquez v. Sarmiento, Jr., 2006)

WHEN A WARRANTLESS ARREST IS 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.

The absence of a preliminary investigation is not a ground for the quashal of a complaint or information as the same is not included in the enumeration of the grounds for a motion to quash under Sec. 3, Rule 117 of the Rules of Court.

Exceptions: 1. In flagrante delicto arrest (Sec. 5(a), Rule 113); 2. Hot pursuit (Sec. 5(b), Rule 113); 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 5(c), Rule 113); 4. When a person previously lawfully arrested has escaped or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the country (Sec. 13, Rule 113); and 5. When an accused released on bail attempts to depart from the Philippines without permission of the court where the case is pending (Sec. 23, Rule 114).

If the accused timely objects to the absence of a preliminary investigation, the court should not dismiss the information. Instead, the case should be remanded to the prosecutor for the investigation to be conducted. (Larrañaga v. CA, 1998) The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation. 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 of the Rules of Court (Sec. 6, Rule 112).

E. ARREST (RULE 113) ARREST An 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) An arrest implies control over the person under custody and, as a consequence, a restraint on his liberty to the extent that he is not free to leave on his own volition. HOW MADE 1. By actual restraint of the person to be arrested. 2. By his submission to the custody of the person making the arrest. (Sec. 2, Rule 113) An arrest implies control over the person under custody and, as a consequence, a restraint on his liberty to the extent that he is not free to leave on his own volition. Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required for arrest to exist. It is enough that there be an intention on the part of one of the parties to

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IN FLAGRANTE DELICTO EXCEPTION An arrest in flagrante delicto is done when, in the presence of a peace officer or a private person, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (Sec. 5, Rule 113,) REQUISITES OF A VALID IN FLAGRANTE DELICTO ARREST 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. (People v. Collado, 2013) In this type of warrantless arrest, the person making the arrest himself witnesses the crime and, hence, has personal knowledge of the commission of the offense. (People v. Villareal, 2013) Mere “suspicion” and “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. Delos Reyes, 2011)

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An overt act is deemed to be committed in the presence of a peace officer or a private person when: 1. He sees the offense, although at a distance; 2. Hears the disturbance created, and proceeds at once to the scene thereof (People v. Del Rosario, 1999); or 3. The offense is continuing or has been committed at the time the arrest was made. (People v. Evaristo, 1992) A warrantless arrest allowed under Rule 113 of the Rules of Court is not justified unless the accused was caught in flagrante or a crime was about to be committed or had just been committed. The evidence of probable cause should be determined by the judge and not by lawenforcement agents. (People v. Aminnudin, 1988) Examples of an in flagrante delicto arrest are those made after an entrapment or a buy-bust operation. Flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness of guilt. It is not a reliable indicator of guilt without other circumstances.

HOT PURSUIT EXCEPTION A hot pursuit arrest may be made when an offense has in fact just been committed, and the peace officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it. (Sec. 5(b), Rule 113) REQUISITES OF A VALID HOT PURSUIT ARREST 1. An offense has just been committed; and 2. The person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it. This exception, unlike an in flagrante delicto arrest, does not require the arresting officer or person to personally witness the commission of the offense. In fact, the offense is not committed in his presence although said offense “has just been committed.” The tenor of the rule emphasizes the immediacy of the arrest reckoned from the commission of the crime. The Court, in the following cases, ruled that the requirement of “immediacy” between the time of the commission of the crime and the time of the arrest is absent, hence, constitutes an illegal arrest: 1. A warrantless arrest made one year after the offense was allegedly committed. 2. A warrantless arrest effected the day after the commission of the crime. 3. A warrantless arrest made six (6) days after the commission of the crime. 4. A warrantless arrest made three (3) days after the commission of the crime. The personal knowledge of facts as contemplated under the hot pursuit exception requires that the same must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. (Abelita v. Doria, 2009)

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The grounds are reasonable when the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts or is supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. (Abelita v. Doria, 2009) In Flagrante Delicto

Hot Pursuit The person making the The person making the arrest knows for a fact that arrest witnesses the crime. a crime has been committed. The person arrested must be delivered to the nearest police station or jail. If the arrest was effected without warrant, the arresting officer must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for delay in the delivery of detained persons or arbitrary detention. RULES ON ILLEGALITY OF ARREST 1. An accused who enters his plea of not guilty and participates in the trial waives the illegality of the arrest. Objection must be raised before arraignment, otherwise it is deemed waived. 2. An arrest may be cured by filing of an information in court and the subsequent issuance by the judge of a warrant of arrest. (Lumbos v. Judge Baliguat, A.M. No. MTJ-06-1641) METHOD OF ARREST An arrest may be made by: 1. An officer with a warrant; 2. An officer without a warrant; or 3. A private person. ARREST BY AN OFFICER WITH A WARRANT 1. When a warrant of arrest is issued by a judge, the warrant is delivered to the proper law enforcement agency for execution. 2. The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within ten (10) days from receipt. 3. 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. 4. In case of failure to execute the warrant, he shall state the reasons for its non-execution. (Sec. 4, Rule 113, Rules of Court) NOTE: The judge is not precluded from issuing another warrant of arrest even after the expiration of the first warrant of arrest,. What is merely required is that a report should be made by the officer to whom it was assigned for execution within ten (10) days. General Rule: When making an arrest by virtue of a warrant, the officer must inform the person to be arrested of: 1. The cause of his arrest; and 2. The fact that a warrant has been issued for his arrest. Exception: The information need not be given if:

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1. 2. 3.

The person to be arrested escapes or flees; The person to be arrested forcibly resists before the officer has the opportunity to so inform him; or When the giving of such information will imperil the arrest. (Sec. 7, Rule 113)

The officer need not have the warrant in his possession at the time of the arrest. However, after the arrest, the warrant shall be shown to the person arrested as soon as practicable, if the person arrested so requires. (Sec. 7, Rule 113) ARREST BY AN OFFICER WITHOUT A WARRANT General Rule: When making an arrest without a warrant, the officer must inform the person to be arrested of: 1. His authority; and 2. The cause of his arrest. Exception: The information need not be given if: 1. The person to be arrested is engaged in the commission of an offense; 2. The person to be arrested is in the process of being pursued immediately after the commission of the offense; 3. The person to be arrested escapes or flees; or 4. The person to be arrested forcibly resists before the officer has the opportunity to so inform him; or 5. When the giving of such information will imperil the arrest. The rules applicable to an arrest with a warrant also apply to an arrest without a warrant. Hence, the officer may summon assistance to effect the arrest, break into a building or enclosure or break out from the same. (Secs. 11-12, Rule 113) ARREST BY A PRIVATE PERSON An arrest is made by a private person is called a citizen’s arrest. General Rule: When a private person makes an arrest, he shall inform the person to be arrested of: 1. His intention to arrest him; and 2. The cause of his arrest. Exception: The information need not be given if: 1. The person to be arrested is engaged in the commission of an offense; 2. The person to be arrested is in the process of being pursued immediately after the commission of the offense; 3. The person to be arrested escapes or flees; or 4. The person to be arrested forcibly resists before the officer has the opportunity to so inform him; or 5. When the giving of such information will imperil the arrest. RIGHTS AND DUTIES OF OFFICERS OR PRIVATE PERSONS IN EFFECTING AN ARREST Under all types of arrest, the officer or private person shall have the duty to deliver the person to the nearest police station or jail without unnecessary delay. (Sec. 3, Rule 113)

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No person arrested shall be subject to greater restraint than is necessary for his detention. (Sec. 2, Rule 113) The right and duty of an officer to effect an arrest carries with it the authority to orally summon as many person as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer is required to give the assistance requested provided he can do so without detriment to himself. (Sec. 10, Rule 113) The duty of a person summoned does not arise when rendering assistance would cause harm to himself. If the person to be arrested is, or is reasonably believed to be, within any building or enclosure, the officer is authorized, in order to make an arrest, to break into any building or enclosure if he is admittance thereto, after announcing his authority and purpose. (Sec. 11, Rule 113) After entering such building or enclosure, he may break out from said place if necessary, to liberate himself from the same place. (Sec. 12, Rule 113) NOTE: The right to break in or break out of any building or enclosure does not apply to private persons effecting an arrest. An arrest may be made on any day and at any time of the day or night. (Sec. 6, Rule 113) REQUISITES OF A VALID WARRANT OF ARREST 1. The warrant shall be issued only upon finding of probable cause to be determined personally by the judge; and 2. The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce. (Sec. 2, Art. III, 1987 Constitution) PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF ARREST Probable cause for the issuance of a warrant of arrest is defined as “such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.” (Ocampo v. Abando, 2014) Neither absolute certainty nor clear and convincing evidence of guilt is required. As long as the evidence shows a prima facie case against the accused, the trial court has sufficient ground to issue a warrant for his arrest. (People v. Tan, 2009) Personal examination by the judge of the complainant and his witnesses under oath is not mandatorily required. Instead the judge 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. (Soliven v. Makasiar, 1988) Where a preliminary investigation has previously been conducted, the court does not have the duty to personally examine the complainant and his witnesses in writing and under oath and in the form of searching questions and answers. This type of examination is done only in a case where there is a direct filing of the

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complaint or information with the MTC since no previous preliminary investigation has been conducted.

3. 4.

KINDS OF DETERMINATION OF PROBABLE CAUSE 1. 2. -

Executive Made by the prosecutor Judicial Made by the judge

DETERMINATION OF PROBABLE CAUSE MADE BY THE PROSECUTOR VIS-À-VIS PROBABLE CAUSE MADE BY THE JUDGE

Determined by Determined during

Purpose

Probable cause

Effect if probable cause is found to exist

Executive The public prosecutor. The preliminary investigation. To determine whether there exists probable cause to believe that the accused is guilty of the offense charged and should be held for trial. Pertains to facts and circumstances sufficient to support a well-founded belief that a crime has been committed and the accused is probably guilty thereof. An information is filed with the court.

Judicial The judge. The preliminary examination/inquiry.

To determine whether there exists probable cause to issue a warrant of arrest against the accused.

Pertains to facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

An arrest warrant is issued.

RIGHTS OF A PERSON ARRESTED The rights of a person arrested, detained or under custodial investigation pursuant to R.A. 7438 are as follows: 1. The right to be assisted by counsel at all times (Sec. 2(a), R.A. 7438); If he cannot afford the services of his own counsel, he must be provided by the investigating officer with a competent and independent counsel. 2. The right to remain silent (Sec. 2(b), R.A. 7438);

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The right to be informed of the above rights (Sec. 2(b), R.A. 7438); and The right to be visited by the immediate members of his family, by his counsel, or by any non-governmental organization, national or international (Sec. 2(f), R.A. 7438).

In the absence of a lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Art. 125 of the RPC. Any waiver of the said provision shall be in writing and signed by the person arrested, detained or under custodial investigation in the presence of his counsel. Any extrajudicial confession made shall also be in writing and signed by the person, detained or under custodial investigation in the presence of his counsel, or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisors, or priest or minister of gospel as chosen by him. CUSTODIAL INVESTIGATION Custodial investigation is when the investigation ceases to be a general inquiry into an unsolved crime and the interrogation is then aimed on a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions that tend to elicit incriminating statements. (Luspo v. People, 2014) Custodial investigation includes the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. MIRANDA RIGHTS A person under custodial investigation must be informed of the following rights: 1. He has a right to remain silent; 2. Any statement he makes can and will be used against him in a court of law; 3. He has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; and 4. If he cannot afford an attorney, one will be provided before any questioning if he so desires. 5. Any of the waiver of the right to counsel must be made in writing and in the presence of counsel. Even those who voluntarily surrendered before a police officer must be apprised of their Miranda rights. (People v. Chavez, 2014) EXCLUSIONARY RULE Violations of the Miranda rights render the evidence obtained inadmissible. COVERAGE OF EXCLUSIONARY RULE 1. Extrajudicial confession; or 2. Admissions made during the custodial investigation. (People v. Malimit, 1996)

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2. Investigation before bantay-bayan/tanod is in the nature of A custodial investigation The Bantay Bayan may be deemed a law enforcer within the purview of the Constitution. The nature of Bantay Bayan is a group of male residents which are organized to maintain peace and order ancillary to the police. Therefore, the exclusionary rule applies on confessions made before a barangay tanod/Bantay Bayan. (People v. Lauga, 2010) EFFECT OF AN ILLEGAL ARREST The legality of an arrest affects only the jurisdiction of the court over the person of the accused. The illegality of the arrest, therefore, cannot in itself, be the basis for acquittal. (People v. Yau, 2014) Any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction of the person of the accused must be made before he enters his plea; otherwise, the objection is deemed waived. (People v. Velasco, 2013) The Court has held that even if a timely objection is made to the warrantless arrest, the illegality of the arrest cannot deprive the State of its right to prosecute the guilty when all other facts on record point to the accused’s culpability. Indeed, an illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error. (People v. Yau) When a person fails to make a timely objection to an illegal arrest, only the right to assail the arrest is waived. He does not waive the right to question the admissibility of the evidence seized by virtue of the illegal arrest. Once a person has been duly charged in court, he may no longer question his detention by a petition for habeas corpus. His remedy is to quash the information and/or the warrant of arrest. (Dwikarna v. Domingo, 2004) EFFECT OF ADMISSION TO BAIL ON OBJECTIONS TO AN ILLEGAL ARREST 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 objection shall be resolved by the court as early as practicable but not later than the start of the trial of the case. (Sec. 26, Rule 114, Rules of Court) IMMUNITY FROM ARREST The persons that may not be subject to arrest are: 1. A senator or member of the House of Representatives in all offenses by not more than six (6) years imprisonment, when the Congress is in session. (Sec. 11, Art. VI, 1987 Constitution) This privilege will not apply when the offense is punishable by imprisonment of more than six (6) years even if Congress is in session. (People v. Jalosjos, 2000) The privilege likewise does not apply if Congress is not in session.

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3.

Sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charge d’affaires. Duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics (Sec. 4, R.A. 75), subject to the principle of reciprocity. (Sec. 7, R.A. 75)

F. BAIL (RULE 114) Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions specified by the Rules. (Sec. 1, Rule 114) NATURE Since bail is the security for the release of a person under custody of the law, it does not cover the civil liability of the accused in the same criminal case. The money deposited as bail may, however, be applied to the payment of fines and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. (Sec. 14, Rule 114) The right to bail is a constitutional right which springs from the presumption of innocence accorded to the accused (Paderanga v. CA, 1995). The presumption of innocence is rooted in the guarantee of due process, and is safeguarded by the constitutional right to be released on bail, and further binds the court to wait until after trial to impose any punishment on the accused. (Enrile v. Sandiganbayan, 2015) A person, before conviction, shall be accorded the right to bail (Sec. 13, Art. III, 1987 Constitution), unless he is charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, and the evidence of his guilt is strong. (Sec. 7, Rule 114) The test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. (People v. Cabral, 1999) WHO MAY APPLY FOR BAIL Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. (Sec. 17(c), Rule 114) A person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him. He need not wait for his arraignment before filing a petition for bail. (Serapio v. Sandignabayan, 2003) A person undergoing inquest proceedings may apply for bail since he is already under the custody of the law. Where the accused was charged for murder without the benefit of a preliminary investigation and trial had already began over his objections, the accused remains entitled to be released on bail as matter of right pending the preliminary investigation. (Go v. CA, 1992)

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NOTE: The filing of the petition for bail does not constitute a waiver of the accused’s right to a preliminary investigation. WHERE THE APPLICATION FOR BAIL IS MADE The application for bail shall be made with any court in the province, city or municipality where the person arrested is held. WHO FURNISHES THE BAIL The bail may be furnished by the bail applicant himself or by the bondsman. (Sec. 1, Rule 114) RIGHTS AND OBLIGATIONS OF THE BONDSMAN 1. 2.

3.

The bondsman shall surrender the accused to the court for execution of the final judgment. (Sec. 2(d), Rule 114) For the purpose of surrendering the accused, the bondsman may: a. Arrest him; or b. 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) An accused released on bail may be re-arrested without the necessity of a warrant of he attempts to depart from the Philippines without permission of the court where the case is pending. (Sec. 23, Rule 114)

The authority of the bondsman to arrest or cause the arrest of the accused stems from the principle that once the obligation of bail is assumed, the bondsman or surety becomes the jailer of the accused and is subrogated to all the rights and means which the government possess to make his control over him effective. (US v. Addison and Gomez, 1914) FORMS OF BAIL 1. Corporate surety 2. Property bond 3. Cash deposit 4. Recognizance CORPORATE SURETY Corporate surety is bail furnished by a corporation, whether domestic or foreign, and which is licensed as a surety and authorized to act as such. The bond must be subscribed jointly by the accused and an officer of the corporation duly authorized by the board of directors. (Sec. 10, Rule 114) PROPERTY BOND A property bond is an undertaking constituted as a lien on the real property given as security for the amount of the bail. 1. Within ten (10) days from the approval of the bond, the accused shall cause the annotation on the certificate of title on file with the Registry of Deeds. 2. If the land is unregistered, it is annotated in the Registration Book on the space provided

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3.

4. 5.

therefor in the Register of Deeds of the province or city where the land lies. The registration shall be made on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within ten (10) days from the performance of the above acts, the accused shall submit his compliance to the court. His failure to do so shall be sufficient cause for the cancellation of the property bond, his rearrest and detention. (Sec. 11, Rule 14)

CASH DEPOSIT The accused or any person acting in his behalf may deposit in cash the amount of bail fixed by the court or recommended by the prosecutor who investigated or filed the case. 1. The cash deposit shall be made with: a. The nearest collector of internal revenue; b. The provincial, city, or municipal treasurer; or c. The clerk of court where the case is pending. 2. The accused shall be discharged from custody upon submission of the certificate of deposit and a written undertaking showing compliance with the requirements of the Rules of Court. 3. The money deposited shall be considered as bail and applied to the payment of fine and costs. 4. The excess, if any, shall be returned to the accused or to whoever made the deposit. (Sec. 14, Rule 114) NOTE: The deposit can only be made with the persons enumerated in the rule. A judge is not one of those authorized to receive a deposit of cash bail; nor should such cash be kept in the judge’s office, much less in his own residence. (Naui v. Mauricio, 2003) RECOGNIZANCE A recognizance is an obligation of record entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. A person in custody may be released on recognizance whenever allowed by law or by the Rules of Court. The release may be either on the recognizance of the accused himself or that of a responsible person. (Sec. 15, Rule 114) WHEN RELEASE ON RECOGNIZANCE IS ALLOWED 1. When the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty of which does not exceed six (6) months imprisonment and/or a fine of P2,000, under the circumstances provided in R.A. 6036; 2. Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case,

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3.

4.

5.

the court may allow his release on his own recognizance, or on reduced bail, at the discretion of the court (Sec. 26, Rule 114, Rules of Court); Where the accused has applied for probation, pending finality of the judgment, but no bail was filed or the accused is incapable of filing one (P.D. 968, Sec. 7; Sec. 24, Rule 114, Rules of Court); In case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in P.D. 603, as amended (Espiritu v. Jovellanos, 1997); In summary procedure, when the accused has been arrested for failure to appear when required. His release shall be either on bail or on recognizance by a responsible citizen acceptable to the court (Sec. 16, 1991 Revised Rule on Summary Procedure).

NOTE: In summary procedure, the release of the accused cannot be effected on his own recognizance. Bail Bond It is an obligation under seal given by accused with one or more sureties, made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform.

Recognizance It is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act.

CUSTODY OF THE LAW IN APPLICATIONS FOR BAIL BY THE ACCUSED Custody of the law is required before the court can act on an application for bail, but is not required for the adjudication of other reliefs sought by the defendant. The mere application for bail constitutes a waiver of the defense of lack of jurisdiction over the person of the accused. (Miranda v. Tuliao, 2006) While the mere application for bail constitutes submission to the jurisdiction of the court, the grant of bail requires not mere jurisdiction over the person of the applicant but “custody” over his person. (Miranda v. Tuliao, 2006) A cash bail bond may be authorized without need of the accused’s personal appearance before the court on the ground of physical incapacity and as a matter of humane consideration. (Defensor-Santiago v. Vasquez, 1993) ARRAIGNMENT BEFORE THE GRANT OF BAIL NOT REQUIRED The grant of bail should not be conditioned upon the prior arraignment of the accused. In cases where bail is authorized, bail should be granted before arraignment; otherwise, the accused will be precluded from filing a motion to quash which is to be done before arraignment. If the information is quashed and the case is dismissed, there would be no need for the arraignment of the accused. (Lavides v. CA, 2000)

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EFFECT OF FAILURE TO APPEAR AT THE TRIAL The failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver of his right to be present and the trial may proceed in absentia. (Sec. 2(c), Rule 114, Rules of Court) If the bail bond was given by a bondsman or a person other than the accused and the latter fails to appear, the bondsman may arrest the accused for the purpose of surrendering him or he may cause the accused to be arrested by a police officer or any other person of suitable age and discretion upon written authority endorsed on a certified copy of the undertaking. (Sec. 23, Rule 114) BAIL TO GUARANTEE APPEARANCE OF WITNESSES Bail does not only apply to a person who has transgressed the law or is perceived to have done so. It may likewise apply to a material witness even if he is not under detention. In such cases, however, prior custody of the law is not required. When the court is satisfied, upon proof or 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. When the material witness refuses to post bail, he shall be committed to prison until he complies or is legally discharged after his testimony has been taken. (Sec. 14, Rule 119) General Rule: Custody of the law is required before the court can act on an application for bail. Exceptions: Custody of the law is not required where the bail is to secure the appearance of: 1. A material witness when the court is satisfied, upon proof or oath, that he will not testify when required (Sec. 14, Rule 119); or 2. Other witnesses when there is a substitution of a criminal information (Sec. 14, Rule 110). When the court is satisfied, upon proof or 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. When the material witness refuses to post bail, he shall be committed to prison until he complies or is legally discharged after his testimony has been taken. (Sec. 14, Rule 119) Bail for the Accused Custody of the law is required. An application for bail is filed by the accused, unless made by recognizance. Failure to apply for bail is deemed a waiver of the accused’s right to bail.

Bail for Witnesses Custody of the law is not required. A motion is filed by either party and when granted, the court orders the witness to post bail. Failure to post bail will result to the witness’ imprisonment until he complies or until his testimony has been taken.

KINDS OF BAIL

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1. 2.

Bail as a matter of right Bail as a matter of discretion

BAIL AS A MATTER OF RIGHT; EXCEPTIONS General Rule: All persons, before conviction, shall be accorded the right to bail. (Sec. 13, Art. III, 1987 Constitution) Exceptions: 1. When the accused is charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, and the evidence of his guilt is strong. (Sec. 7, Rule 114) 2. The right to bail is not available in the military. (Comendador v. Villa, 1991) The right to a speedy trial is given more emphasis in the military where the right to bail does not exist. There would be no violation of the equal protection clause since the said guaranty requires equal treatment only of persons or things similarly situated, and not where the subject of the treatment is substantially different from others. 3. Persons facing extradition. (U.S. Government v. Purganan, 2002) Exception to the exception: After a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted only upon a clear and convincing showing that: 1. 2.

Once granted bail, the applicant will not be a flight risk or a danger to the community; and There exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. (U.S. Government v. Purganan, 2002)

NOTE: The exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Hence, the right to bail is not limited to criminal proceedings and may apply to extradition proceedings, which are sui generis and not criminal in nature. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. (Government of Hongkong Special Administrative Region v. Olalia, Jr., 2007) Bail is a matter of right in the following situations: 1. Before conviction by the MeTC, MTC, MTCC, or MCTC; 2. After conviction by the MeTC, MTC, MTCC, or MCTC; or 3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment (Sec. 4, Rule 114).

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NOTE: All criminal cases within the competence of the MeTC, MTC, MTCC, or MCTC are bailable as a matter of right because these courts have no jurisdiction to try cases punishable by death, reclusion perpetua or life imprisonment. When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong. EXTRADITION Extradition is the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. (Sec. 2(a), P.D. 1069) REMEDY WHEN BAIL IS DENIED 1. File a petition for certiorari if the trial court committed grave abuse of discretion amounting to excess or lack or jurisdiction in issuing the said order. (People v. Gomez, 2000) 2. File for mandamus to compel the grant of bail which is a matter of right. When bail is a matter of right, the same cannot be denied. The probability that the accused will escape or not appear in the trial is not a ground for denial of the right to bail. It is, however, a reason for the court to increase the bail bond to assure his appearance. (San Miguel v. Maceda, 2007) In instances where bail is a matter of right and the bail to be granted is based on the recommendation of the prosecution as stated in the information or complaint, hearing is not necessary. BAIL AS A MATTER OF DISCRETION Bail is a matter of discretion when the accused has been convicted in the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. (Sec. 5, Rule 114) When bail is a matter of discretion, the following rules apply: 1. A hearing must be conducted whether or not the prosecution refuses to present evidence; and 2. The prosecutor must be notified to require him to submit his recommendation. NOTE: The notice of hearing applies in all cases whether bail is a matter of right or a matter of discretion. (Zuño v. Cabebe 2004) The discretion of the court may be exercised only after the hearing called to ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted provisional liberty. This hearing is indispensable. Said hearing may be either summary or otherwise, in the discretion of the court. (Enrile v. Sandiganbayan, 2015) When the penalty imposed is death, reclusion perpetua or life imprisonment, bail should be denied, regardless of the

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stage of the prosecution, because this means that the evidence of guilt against him is not just strong. His guilt has actually been proven beyond reasonable doubt. WHERE APPLICATION FOR BAIL IS TO BE FILED AFTER CONVICTION BY THE RTC

Filed with the RTC

Filed with the CA

If the original record has not been transmitted to the CA, and even if a notice of appeal has already been filed. (Sec. 5, Rule 114; Sec. 6, Rule 120) If the original record has already been transmitted to the CA. If the decision of the RTC convicting the accused changed the nature of the offense from non-bailable to bailable. (Sec. 5, Rule 114)

If the court grants the application for bail, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail. This rule, however, is subject to the consent of the bondsman. (Sec. 5, Rule 114) WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL BE DENIED BY THE RTC 1.

2.

3.

If the penalty imposed is death, reclusion perpetua or life imprisonment since the conviction indicates strong evidence of guilt based on proof beyond reasonable doubt (People v. Nitcha, 1995); and If the penalty imposed by the RTC is not any above but merely imprisonment exceeding six (6) years, if the prosecution shows the following or other similar circumstances (bail negating circumstances): a. Recidivism, quasi-recidivism or habitual delinquency or commission of a crime aggravated by the circumstance of reiteration; b. Previous escape from legal confinement, evasion of sentence, or violation of the conditions of bail without valid justification; c. Commission of the offense while under probation, parole or conditional pardon; d. Probability of flight if released on bail; or e. Undue risk that another crime may be committed during pendency of the appeal. (Sec. 5, Rule 114, Rules of Court) After judgment has become final, unless the accused applied for probation before commencing to serve sentence within the purview of probation law.

A finding that none of the five (5) circumstances is present will not automatically result in the grant of bail.

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Such finding will simply authorize the court to use a less stringent sound discretion approach. (Leviste v. CA, 2010) The court is not authorized to deny or cancel bail ex parte. The rule requires “notice to the accused”. (Sec. 5, Rule 114) The resolution of the RTC denying or cancelling the bail may be reviewed by the CA motu proprio or on motion of any party after notice to the adverse party in either case. (Sec. 5, Rule 114) SUMMARY OF RULES FOR BAIL When Where filed Before or General Rule: Court after where the case is conviction pending. by the MeTC, Exception: If the judge MTC, MTCC thereof is absent or or MCTC. unavailable, then it should be filed with any Before RTC, MeTC. MTC. or Bail as a conviction MCTC judge. matter of by the RTC right of an NOTE: In case the offense not exception applies, the punishable judge must forward all by death, relevant documents to reclusion the court where the perpetua, or case is pending. life imprisonme nt. With the RTC if the Upon original record has not conviction been transmitted to the by the RTC CA, and even if a notice of an of appeal has already offense not Bail as a been filed. punishable matter of by death, With the CA the original discretion reclusion record has been perpetua, or transmitted or when the life nature of the offense imprisonme changes from nonnt. bailable to bailable.

DENIAL OF BAIL: 1. When the penalty imposed is death, reclusion perpetua or life imprisonment and evidence of guilt is strong 2. For members of the military. 3. Even if the penalty imposed by the RTC is not any of the above but merely imprisonment exceeding six (6) years, and upon showing by the prosecution of the following: a) Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration; b) Previous escape from legal confinement, evasion of sentence, or violation of the conditions of bail without valid justification;

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c) d)

Committed of an offense while under probation, parole or conditional pardon; Probability of flight; Undue risk that another crime may be committed during the pendency of the appeal.

HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES (offenses punishable by death, reclusion perpetua, or life imprisonment) A hearing for the application for bail is to be conducted when a person is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment. In the hearing, the prosecution has the burden of showing that the evidence of guilt is strong. (Sec. 8, Rule 114) In a petition for bail, the following duties must be complied with by the trial judge (Narciso v. Santa Romana-Cruz, 2000): 1. The prosecutor must be notified of the hearing of the application for bail or he must be required to submit his recommendation; 2. A hearing of the application for bail must be conducted regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; 3. The judge must decide whether the evidence of guilt is strong based on the summary of evidence of the prosecution; and 4. If the guilt of the accused is not strong, the accused must be discharged upon the approval of the bail bond. Otherwise, the petition should be denied. 5. Within forty-eight (48) hours after the 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. NOTE: The conclusion made by the judge shall not be regarded as a pre-judgment on the merits of the case. (Sec. 6(d), A.M. No. 12-11-2-SC)

NOTE: The imposition of the death penalty is now prohibited. In lieu of the death penalty, the penalty of reclusion perpetua or life imprisonment is now imposed. If the law at the time of commission does not impose death penalty, the subsequent amendment of the law increasing the penalty cannot apply to the case, otherwise it would be considered as ex post facto. If the law at the time of the application for bail has amended the prior law which imposed the death penalty by reducing such penalty, the law favorable to the accused shall have retroactive application. CAPITAL OFFENSE NOT BAILABLE General Rule: Capital offense or those punishable by reclusion perpetua, or life imprisonment are not bailable when evidence of guilt is strong. Exception: If the accused charged with a capital offense is a minor. (Sec. 25, Juvenile Justice Welfare Act) HEARING TO DETERMINE PROBABLE CAUSE VIS-ÀVIS HEARING FOR BAIL The bail hearing is separate and distinct from the initial hearing to determine the existence of probable cause. (Gacal v. Infante, 2011)

When it takes place

Purpose

Even when there is no petition for bail, a hearing should still be held. (Gacal v. Infante, 2011) The public prosecutor’s recommendation for bail, including the amount thereof, is not material in deciding whether to conduct the mandatory hearing or not. The prosecutor’s recommendation, albeit persuasive, does not necessarily bind the trial judge, in whom alone the discretion to determine whether to grant bail or not is vested. (Gacal v. Infante, 2011) CAPITAL OFFENSE A capital offense is an offense which, under the law existing at the time of its commission and at the time of the application for admission to bail, may be punished with death. (Sec. 6, Rule 114) The capital nature of an offense is determined by the penalty prescribed by law and not the penalty to be actually imposed. (Bravo v. De Borja, 1985)

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Effect

Hearing to Determine Probable Cause

Hearing for Bail

Takes place prior to all proceedings.

Only takes place after the proceedings for the determination of the existence of probable cause.

Conducted to determine whether or not there is sufficient ground to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof. If the court finds the existence of probable cause, a warrant of arrest or commitment order will be issued.

Conducted to determine if the evidence of guilt is week or not.

If granted, an amount will be fixed by the court and the accused shall be discharged.

GUIDELINES IN FIXING THE AMOUNT OF BAIL 1. Excessive bail shall not be required. (Sec. 13, Art. III, 1987 Constitution) 2. The judge shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

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a. b. c. d. e. f. g. h. i. j.

Financial ability of the accused to give bail; 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; The fact that the accused was a fugitive from justice when arrested; and Pendency of other cases where the accused is on bail.

In fixing bail, the amount should be high enough to assure the presence of the accused when such presence is required but no higher than is reasonably calculated to fulfill this purpose. (Villaseñor v. Abano, 1967) The inability of the accused to secure bail in a certain amount is not solely to be considered and this fact does not by itself make bail excessive. When an accused has no means to bail himself out, any amount fixed, no matter how small would fall into the category of excessive bail. (Villaseñor v. Abano, 1967) REMEDIES IN FIXING THE AMOUNT OF BAIL If the accused does not have the financial ability to post the amount of bail that the court initially fixed, he may: 1. Move for its reduction; and 2. Submit for that purpose such documents or affidavits as may warrant the reduction he seeks. (Sec. 3, A.M. No. 12-11-2 SC) The order fixing the amount of bail is not appealable. (Sec. 4, A.M. No. 12-11-2 SC) DURATION OF THE BAIL The undertaking under the bail shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of judgment of the RTC, irrespective of whether the case was originally filed in or appealed to it. (Sec. 2(a), Rule 114) The bail bond posted by the accused can only be used during the 15-day period to appeal and not during the entire period of appeal. For the accused to continue his provisional liberty on the same bail bond, consent of the bondsman is necessary. (Magaddatu v. CA, 2000) RELEASE OR TRANSFER OF PERSON IN CUSTODY General Rule: No person under detention by legal process shall be released or transferred. Exceptions: 1. Upon order of the court; or 2. When he is admitted to bail. (Sec. 3, Rule 114) WHEN BAIL IS NOT REQUIRED

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As a rule, bail is not required when the law or the Rules of Court so provide (Sec. 16, Rule 114). The following are instances where the accused may be released immediately without applying for bail: 1. When he has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, without prejudice to the continuation of the trial or the proceedings on appeal. 2. When the maximum penalty to which the accused may be sentenced is destierro, in which case he shall be released after thirty (30) days of preventive imprisonment. 3. In cases filed with the MTC or MCTC for an offense punishable by imprisonment of less than four (4) years, two (2) months, and one (1) day, and the judge is satisfied that there is no necessity for placing the accused under custody. In which case summons may be issued instead of a warrant of arrest. (Sec. 8(b), Rule 112). Since no arrest is made, bail is not required. 4. Under the circumstances provided in R.A. 603, when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty of which does not exceed six (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. INCREASE OR REDUCTION OF BAIL Even after the accused is admitted to bail, the amount of bail may either be increased or reduced by the court upon good cause (Sec. 20, Rule 114) When the amount is increased, 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) Where the offense is bailable as a matter of right, mere probability that accused will escape, or even if he had previously escaped while under detention, does not deprive him of his right to bail. The remedy is to increase the amount of bail, provided such amount would not be excessive. (Sy Guan v. Amparo, 1947) If, upon the filing of the complaint or information, the accused is released without bail, he may later be required to give bail in the amount fixed by the court, whenever at any subsequent stage of the proceedings a strong showing of guilt appears to the court. If he does not give bail, he may be committed into custody. (Sec. 20, Rule 114) FORFEITURE OF BAIL 1. When the presence of the accused is required, his bondsmen shall be notified to produce him before the court on a given date and time (Sec. 21(b), Rule 114). 2. If he fails to appear, his bail shall be declared for forfeited. 3. The bondsmen shall be given thirty (30) days within which to: a. Produce the body of their principal or give the reason for his nonproduction; and

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b.

4.

5.

6.

Explain why the accused did not appear before the court when first required to do so. If the bondsmen fail in the two requirements, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The bondsmen may move for the mitigation of their liability. However, the court shall not reduce nor mitigate the said liability unless the accused has been surrendered or is acquitted. (Sec. 21, Rule 114) Aside from the forfeiture, the court may issue a bench warrant for the arrest of the accused.

The thirty (30) day period granted to bondsmen to comply with the requisites for lifting of the order of forfeiture cannot be shortened by the court but may be extended for good cause shown. An order of forfeiture differs from the judgment on the bond. An order of forfeiture is interlocutory and merely requires the bondsmen to show cause why judgment should not be rendered against them for the amount of the bond. On the other hand, the judgment on the bond is issued if the accused is not produced within the 30-day period. (Mendoza v. Alarma, 2008) Order of Forfeiture Conditional and interlocutory, there being something more to be done such as the production of accused within thirty (30) days as provided by the Rules; not appealable.

Order of Confiscation Judgment ultimately determining the liability of the surety thereunder, and therefore final and execution may issue at once; not independent of the order of forfeiture

BENCH WARRANT A bench warrant is a writ issued directly by a judge to a law enforcement officer, for the arrest of a person who: 1. Has been held in contempt; 2. Has disobeyed a subpoena; or 3. Has to appear at a hearing or trial. (Sec. 9, Rule 71) When a person released on bail fails to appear on the day fixed for the hearing, the court may issue a bench warrant or may order the bond for his appearance be forfeited and confiscated, or both. (Magleo v. De JuanQuinagoran, 2014) CANCELLATION OF BAIL Bail may be cancelled upon: 1. Application of the bondsmen; or 2. Automatic cancellation. CANCELLATION BY APPLICATION OF THE BONDSMEN Bail may be cancelled upon application of the bondsmen with due notice to the prosecutor upon: 1. Surrender of the accused; or 2. Proof of his death. (Sec. 22, Rule 114) AUTOMATIC CANCELLATION The bail may be deemed automatically cancelled upon: 1. Acquittal of the accused;

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2. 3.

Dismissal of the case; or Execution of the judgment of conviction.

Cancellation by Application of the Bondsmen

Automatic Cancellation

Cancelled by application.

Cancelled happening events.

upon the of certain

Due notice to the prosecutor is required.

No notice is required.

Grounds: 1. Surrender of the accused; or 2. Proof of his death.

Grounds: 1. Acquittal of the accused; 2. Dismissal of the case; or 3. Execution of the judgment of conviction.

HOLD DEPARTURE ORDER A hold departure order is a directive that commands the Commissioner of Immigration (COI) to prevent a traveler from leaving the territorial jurisdiction of the Philippines, and implemented upon: 1. Instruction by the President; 2. Order of the Secretary of Justice; or 3. Order of a court of competent jurisdiction. (Ledesma, An Outline of Philippine Immigration and Citizenship Laws) Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. (Sec. 26, Rule 114) The Secretary of Justice may issue a hold departure order in any of the following instances: 1. Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the RTC; 2. Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government; 3. The Secretary of Justice may likewise issue the said order against any person, either motu proprio, or upon the request by the head of a Department of the Government, the head of a constitutional body or commission, the Chief Justice of the SC for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health. (Sec. 1, DOJ Cir. No. 41-10)

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The validity of a hold departure order extends up to five (5) years from the date of its issuance. Bondsmen can prevent accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority. (Sec. 23, Rule 114) The accused may be prohibited from the leaving country during the pendency of his case (People v. Uy Tuising, 1935; Manotoc v. CA 1986). If the accused released on bail attempts to depart from the Philippines without the permission of the court where his cases is pending, he may be re-arrested without warrant. (Sec. 23, Rule 113) A hold departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction. (SC Circular No. 39-97) BUREAU OF IMMIGRATION WATCH LIST A watch list order is an alarm issued by the COI that requires immigration personnel at authorized ports of entry or departure to immediately notify the appropriate government or law enforcement agency concerned of the entry or intended departure of a traveler whose presence: 1. Is required in civil, criminal or administrative proceedings; or 2. Poses or may pose a threat to national security, public health or public safety. (Ledesma, An Outline of Philippine Immigration and Citizenship Laws) The Secretary of Justice may issue a watch list order under any of the following instances: 1. Against the accused, irrespective of nationality, in criminal cases pending trial before the RTC; 2. Against the respondent, irrespective of nationality in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the DOJ or any of its provincial or city prosecution offices; 3. The Secretary of Justice may likewise issue the said order against any person, either motu proprio, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health. (Sec. 2, DOJ Cir. No. 41-10) The validity of a watch list order extends up to sixty (60) days from date of issuance. NO BAIL AFTER FINAL JUDGMENT General Rule: Finality of judgment terminates the criminal proceeding. Bail becomes of no avail. The judgment contemplated is a judgment of conviction. The judgment is final if accused does not appeal the conviction. Exception: If accused applies for probation he may be allowed temporary liberty under his existing bail bond, or if no bail was filed, or is incapable of filing one, he may be released on recognizance to the custody of a responsible member of the community.

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The application for probation must be filed within the period of perfecting an appeal. Such filing operates as a waiver of the right to appeal. The accused in the meantime, is entitled to be released on bail or recognizance (Sec. 4, P.D. 968, as amended).

G. ARRAIGNMENT AND PLEA (RULE 116) ARRAIGNMENT Arraignment is the formal mode and manner of implementing the constitutional right of accused to be informed of the nature and cause of the accusation against him. It is an indispensable requirement of due process. (Taglay v. Daray, 2012) The absence of arraignment results in the nullity of the proceedings before the trial court. If the accused has not been arraigned, he cannot be tried in absentia. (Sec. 14(2), Art. III, 1987 Constitution) Arraignment may be made even after the case has been submitted for decision, and will be considered cured where the accused’s counsel participated in the trial without any objection that his client had yet to be arraigned. Furthermore, the fact that his counsel was able to cross-examine the prosecution witnesses is a clear indication that he was fully aware of the charges against him. (People v. Atienza, 1995) Before arraignment, the court shall: 1. Inform the accused of his right to counsel; 2. Ask him if he desires to have one; and 3. Must assign a counsel de officio to defend him, unless the accused: a. Is allowed to defend himself in person; or b. Has employed a counsel of his choice. (Sec. 6, Rule 116) In localities where members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused. 9Sec. 7, Rule 116) PLEA Plea pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him. The accused may plead guilty or not guilty. OPTIONS OF THE ACCUSED BEFORE ARRAIGNMENT AND PLEA 1. Bill of particulars 2. Suspension of the arraignment, only if: a. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; b. There exists a prejudicial question; and c. There is a petition for review of the resolution of the prosecutor which is pending at either the DOJ, or the Office of the President.

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3. 4.

NOTE: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. (Sec. 11(c), Rule 116) Motion to quash; Challenge the validity of arrest or legality of the warrant issued or assail the regularity or question the absence of preliminary investigation of the charge.

ARRAIGNMENT UNDER AN AMENDED OR SUBSTITUTED INFORMATION Where the accused has already been arraigned and subsequently, the information was substantially amended, an arraignment on the amended information is mandatory. (Cabangbangan v. Concepcion, 1954) Where there is a mere formal amendment, there is no need for another preliminary investigation and the retaking of the plea of the accused. (Teehankee, Jr. Madayag, 1992) WHERE AND HOW MADE 1. The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. (Sec. 1(a), Rule 116) 2. The arraignment is 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 (Sec. 1(a), Rule 116) 3. The accused must be present at the arraignment and must personally enter his plea. (Sec. 1(b), Rule 116) 4. The private offended party is required to appear at the arraignment for the following purposes: a. Plea bargaining; b. Determination of civil liability; and c. Other matters requiring his presence. (Sec. 1(f), Rule 116) 5. 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) 6. The arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (Sec. 1(b), Rule 116) WHEN MADE 1.

2.

3.

The arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided by a special law or a Supreme Court circular. (Sec. 1(g), Rule 116) Where a plea of guilty is not entered, the accused shall have at least fifteen (15) days to prepare for the trial, and he/she shall state whether he/she interposes a negative or affirmative defense. When the accused is under preventive detention, his case shall be raffled and its

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records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall then be arraigned within ten (10) days from the date of the raffle and the pre-trial conference of his case shall be held within ten (10) days after arraignment. (Sec. 1(e), Rule 116) In computing the period, the following shall be excluded: 1. The time of the pendency of the motion to quash; 2. The time for the pendency of a bill of particulars; or 3. Other causes justifying suspension of the arraignment. (Sec. 1(g), Rule 116) WHEN SHOULD A PLEA OF “NOT GUILTY” BE ENTERED 1. When the accused so pleaded; 2. When he refuses to plead; 3. Where, after a plea of guilt, he presents exculpatory evidence in which case the guilty plea shall be deemed withdrawn; 4. When the accused admits the facts in the information but alleges that he performed the acts as a matter of defense or with lawful justification; 5. When the plea of guilt is indefinite, ambiguous, or not absolute; 6. When he enters a conditional plea of guilt; or 7. When there is a withdrawal of an improvident plea of guilt. PLEA OF GUILTY AS A JUDICIAL CONFESSION General Rule: An unconditional plea of guilt is a judicial confession, hence an admission of all the material facts alleged in the information, including the aggravating circumstances alleged. (People v. Gravino, 1983) Exceptions: The rule on the admission of aggravating circumstances will not apply of: 1. The circumstances are disproved by the evidence; 2. Where the plea of guilty was compelled by violence or intimidation; 3. When accused did not fully understand the meaning and consequences of his plea; 4. Where the information is insufficient to sustain conviction of the offense charged; 5. Where the information does not charge an offense, any conviction thereunder being void; or 6. Where the court has no jurisdiction. PLEA BARGAINING Plea bargaining is a process whereby the accused and the prosecution work a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence that that for the graver charge. (Daan v. Sandiganbayan, 2008) REQUISITES FOR A PLEA OF GUILTY TO A LESSER OFFENSE

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The accused may plead guilty to a lesser offense provided: 1. The lesser offense is necessarily included in the offense charged; and 2. The plea must be with the consent of both the offended party and the prosecutor. (Sec. 2, Rule 116) The consent of the offended party will not be required if said party, despite due notice, fails to appear during the arraignment. (Sec. 1(f), Rule 116) If accused entered a plea to a lesser offense without the consent of the offended party and the prosecutor and he was convicted, his subsequent conviction of the crime charged would not place him in double jeopardy. The acceptance of an offer to plead guilty to a lesser offense is a matter addressed entirely to the sound discretion of the trial court. (Daan v. Sandiganbayan, 2008) An offense is necessarily included in another when some of the essential elements or ingredients of the former as alleged in the complaint or information constitute the latter and vice versa. (Daan v. Sandiganbayan, 2008) WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE The accused may plead guilty to a lesser offense at or after arraignment, and after his prior plea of guilty is withdrawn, provided that the same be made before trial. (Sec. 2, Rule 116) It has been held, however, that it may also be considered during the trial proper and even after the prosecution has finished presenting its evidence and rested its case. (Daan v. Sandiganbayan, 2008) After arraignment but before trial, the accused may still be allowed to plead guilty to a lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. PLEA OF GUILTY TO A CAPITAL OFFENSE, WHAT THE COURT SHOULD DO A capital offense is one, which, under the law existing at the time of the commission and of the application for admission to bail, may be punished with death. (Sec. 6, Rule 114) At present, the death penalty is no longer imposed but the definition has been retained in the Rules of Court. When accused pleads guilty to a capital offense, the court shall: 1. Conduct a searching inquiry to ascertain: a. The voluntariness of the plea; and b. Whether or not the accused has full comprehension of the consequences of his plea; 2. Require the prosecution to prove: a. The guilt of the accused; and b. The precise degree of his culpability; and

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3.

Ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. (Sec. 3, Rule 116)

SEARCHING INQUIRY It is essential that a searching inquiry is conducted after the accused pleads guilty to a capital offense, and the following guidelines must be complied with in making such inquiry: 1. Ascertain from the accused himself the voluntariness of the plea and: a. How he was brought into the custody of the law; b. Whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and c. Under what conditions he was detained and interrogated during the investigations. 2. 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; 3. Elicit information about the personality profile of the accused (e.g. age, socio-economic status, and educational background); 4. 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. 5. 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. 6. All questions posed to the accused should be in a language known and understood by the latter. 7. 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, 2002) Where the court failed to conduct the searching inquiry, the plea of guilt is deemed made improvidently and rendered inefficacious. (People v. Gumimba, 2007) Although there is no definite and concrete rule as to how a trial judge may go about the manner of conducting a proper "searching inquiry," it would be well for the court to require the accused to fully narrate the incident that spawned the charges against him, or by making him reenact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance. (People v. Bello, 1999) The trial court should also be convinced that the accused has not been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters. Likewise, a series of questions directed at defense counsel as to whether or not said counsel had conferred with, and completely explained to the accused the meaning of a plea and its consequences, would be a well-taken step along those lines. (People v. Estomaca, 1996)

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PLEA OF GUILTY TO A NON-CAPITAL OFFENSE When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed. (Sec. 4, Rule 116) No searching inquiry is required nor can the accused that the same be conducted in order to determine the voluntariness and full comprehension of the consequences of his plea. (People v. Madraga, 2000) IMPROVIDENT PLEA An improvident plea is one given without proper information as to all circumstances affecting it and is based upon a mistaken assumption or misleading information or advice. (Black’s Law Dictionary) An improvident plea is when the trial court failed in its duty to conduct the prescribed “searching inquiry” into the voluntariness and full comprehension of the plea of guilty, hence, the said plea is rendered inefficacious. (People v. Gumimba, 2007) There are three (3) conditions that the trial court should do in order to forestall the entry of an improvident plea of guilty by the accused, namely: 1. The court must conduct a searching inquiry into the voluntariness and full comprehension by the accused of the consequences of his plea; 2. The court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and 3. The court must ask the accused whether he desires to present evidence on his behalf, and allow him to do so if he so desires (People v. Spidol, 2004). At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. (Sec. 5, Rule 116) Convictions based on an improvident plea of guilty are set aside only if such plea is the sole basis of the judgment. (People v. Solamillo, 2003) Where the court relied on sufficient and credible evidence to convict the accused, the same will be sustained. (People v. Ceredon, 2008) The withdrawal of plea of guilt is a matter of sound discretion of the trial court. (People v. Lambrino, 1958). INSTANCES OF IMPROVIDENT PLEA 1. When the plea of guilty was compelled by violence or intimidation; 2. When the accused did not fully understand the meaning and consequences of his plea; 3. When there is insufficient information to sustain conviction of the offense charged; 4. When the information does not charge an offense, hence, any conviction thereunder is void; 5. When the court has no jurisdiction; 6. When there was a failure to conduct searching inquiry, if necessary. GROUNDS FOR SUSPENSION OF ARRAIGNMENT

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Suspension of the arraignment is allowed, only if: 1. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; 2. There exists a prejudicial question; and 3. There is a petition for review of the resolution of the prosecutor which is pending at either the DOJ, or the Office of the President. When a judge is informed or discovers that an accused is apparently in a present condition of insanity or imbecility, it is within his discretion to investigate the matter, and if it be found that by reason of such affliction the accused could not, with the aid of counsel, make a proper defense, it is the duty of the court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are recovered (People v. Alcalde, 2002).

H. MOTION TO QUASH (RULE 117) MOTION TO QUASH A motion to quash is a mode by which an accused assails the validity of a criminal complaint or information filed against him for sufficiency on its face in point of law, or for defects which are apparent in the face of the information. The term “to quash” means “to annul, vacate or overthrow,” implying that quashing an information does not necessarily mean its dismissal. (People v. Sandiganbayan, 2004) WHEN FILED A motion to quash may be made at any time before the accused enters his plea. (Sec. 1, Rule 117) General Rule: A motion to quash is an omnibus motion since all objections available at the time the motion is filed should be invoked, otherwise, it shall be deemed a waiver of the said objections. Exception: The following objections are not waived (Sec. 9, Rule 117): 1. The facts charged do not constitute an offense (Sec. 3(a), Rule 117); 2. The court trying the case has no jurisdiction over the offense charged (Sec. 3(b), Rule 117); 3. The criminal action or liability has been extinguished (Sec. 3(g), Rule 117); and 4. Double jeopardy. (Sec. 3(i), Rule 117) A motion to quash presupposes that the accused hypothetically admits the facts alleged, hence, the court in resolving the motion cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information, except those admitted by the prosecution. (Milo v. Salanga, 1987) A motion to quash is generally not allowed in a summary procedure except on the ground of lack of jurisdiction over the subject matter or failure to comply with the barangay conciliation proceedings. (Sec. 19, Rule on Summary Procedure)

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FORM AND CONTENTS OF THE MOTION TO QUASH 1. The motion shall be in writing; 2. The motion shall be signed by the accused or his counsel; and 3. The motion shall distinctly specify the factual and legal grounds thereof. (Sec. 2, Rule 117) GROUNDS FOR A MOTION TO QUASH 1. The facts charged do not constitute an offense; 2. The court trying the case has no jurisdiction over the offense charged; 3. The court trying the case has no jurisdiction over the person of the accused; 4. The officer who filed the information had no authority to do so; 5. The motion does not conform substantially to the prescribed form; 6. More than one offense is charged except when a single punishment for various offenses is prescribed by law; 7. The criminal action or liability has been extinguished; 8. It contains averments which, if true, would constitute a legal excuse or justification; 9. The accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (Sec. 3, Rule 117) MOTION TO QUASH EVIDENCE Motion to Quash (Rule 117)

VIS-À-VIS

Filed before the accused enters a plea. No prior leave of court is required. Grounds under Sec. 3, Rule 117 of the Rules of Court. Based on matters found on the face of the complaint or information. When granted, a dismissal of the case will not necessarily follow as the court may order the filing of a new complaint or information. An order sustaining the motion is generally not a bar to another prosecution.

DEMURRER

TO

Demurrer to Evidence (Rule 119) Filed after the prosecution rests its case (Sec. 23, Rule 119), hence, during trial. Either with or without leave of court. Ground is for insufficiency of evidence. Based on matters outside the complaint or information.

When granted, it amounts to an acquittal.

An order granting a demurrer is a resolution of the case on the merits.

REMEDY FROM A DENIAL OF THE MOTION TO QUASH General Rule: The movant should go to trial without prejudice to reiterating the special defenses invoked in the motion to quash. A petition for certiorari under Rule 65 or prohibition is not the proper remedy. Exception: If the court, in denying the motion to quash, acted with grave abuse of discretion amounting to lack or excess of jurisdiction. (Lazarte v. Sandiganbayan, 2009)

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EFFECTS OF SUSTAINING THE MOTION TO QUASH General Rule: An order sustaining a motion to quash is not a bar to another prosecution for the same offense. Hence, the court may order that another complaint or information be filed. Exception: Another complaint or information cannot be filed when the ground relied upon for sustaining the motion is either: 1. The extinction of the criminal liability; or 2. Double jeopardy. If the motion to quash is based on the alleged defect of the complaint or information, and the defect can be cured, the court can order that an amendment be made (Sec. 4, Rule 117). However, the prosecution: 1. Fails to make the amendment; or 2. If despite the amendment, the complaint or information suffers from the same defect, the court shall grant the motion to quash. (Sec. 4, Rule 117, Rules of Court) If the court orders that another complaint or information be filed, the accused, who may be in custody, shall not be discharged or released, except if he is admitted to bail. (Sec. 5, Rule 117) If such order is not made, or if having been made, another information is not filed within a time to be specified in the order, or within such time as the court may allow, accused, if in custody, shall be discharged therefrom, unless he is also in custody on some other charge. If the motion to quash is sustained upon any of the following grounds, the court must state, in its order granting the motion, the release of accused if he is in custody or the cancellation of his bond if he is on bail: 1. That a criminal action or liability has been extinguished; 2. That the complaint contains averments which, if true, would constitute a legal excuse or justification; or 3. That the accused has been previously convicted or acquitted of the offense charged. If the ground upon which the motion to quash was sustained is that the court has no jurisdiction over the offense, the better practice is for the court to remand or forward the case to the proper court. Exception to the rule that sustaining the motion to quash aS not a bar to another prosecution General Rule: An order sustaining a motion to quash is not a bar to another prosecution for the same offense. Hence, the court may order that another complaint or information be filed. Exception: Another complaint or information cannot be filed when the ground relied upon for sustaining the motion is either: 1. The extinction of the criminal liability; or 2. Double jeopardy. DOUBLE JEOPARDY Double jeopardy refers to the jeopardy of punishment for the same offense and presupposes two separate criminal

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prosecutions (Garcia v. Sandiganbayan, 2009). Also called as “res judicata in prison grey,” the right against double jeopardy prohibits the prosecution for a crime of which he has been previously convicted or acquitted (Caes v. IAC, 1989) NOTE: Res judicata is a doctrine in civil law, and thus, has no bearing in criminal proceedings even if double jeopardy has been described as “res judicata in prison grey.” (Trinidad v. Office of the Ombudsman, 2007) This criminal law concept of double jeopardy stems from the constitutional provision that “no person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” (Sec. 21, Art. III, 1987 Constitution) The Constitution does not prohibit placing a person in jeopardy. What it prohibits is putting an accused in “double jeopardy” in which he is put in danger of conviction and punishment for the same offense more than once. Double jeopardy presupposes that: 1. A first jeopardy has already attached prior to the second jeopardy; 2. The first jeopardy has already been terminated either because the accused has already been convicted, or acquitted, or the case against him has been dismissed or terminated without his express consent. REQUISITES OF DOUBLE JEOPARDY Double jeopardy attaches only: 1. Upon a valid indictment; There must be a valid complaint or information or formal charge sufficient in form and substance to sustain a conviction. Sec. 7, Rule 117) 2. Before a competent court; 3. After arraignment; 4. When a valid plea has been entered; and 5. When the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused. The mere filing of two informations or complaints charging the same offense does not yet afford the accused the occasion to complain that he is being placed in double jeopardy. (Tangan v. People, 1987) When all the requisites are present, they constitute a bar to a second prosecution for: 1. The same offense, or 2. An attempt to commit the said offense, or 3. A frustration of the said offense, or 4. Any offense which necessarily includes or is necessarily included in the first offense charged. Not every dismissal with the consent of the accused would preclude the invocation of the protection against double jeopardy. Double jeopardy will apply even if the

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dismissal made with the express consent of the accused, or upon his own motion, if the dismissal, which will have the effect of acquittal, is predicated on either of two grounds: 1. Insufficiency of evidence; or 2. Denial of the right to speedy trial. (People v. Declaro, 1989) The invocation of the right to speedy trial should be preceded by insisting on a trial. (Andres v. Cacdac, 1982) The same criminal act may give rise to two or more separate and distinct offenses. No double jeopardy attaches as long as there is a variance between the elements of the two offenses charged. (Braza v. Sandiganbayan, 2013) The rule on double jeopardy does not apply to administrative cases. (Icasiano v. Sandiganbayan, 1992) Dismissal of the criminal case does not result in the dismissal of the administrative case because there exists a difference between those two remedies. (Office of the Ombudsman v. Medrano, 2008) A preliminary investigation is merely inquisitorial, is an executive function, and is not a trial of the case on the merits, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty therefor. As such, it does not place the person against whom it is taken in jeopardy. (Tandoc v. Resultan, 1989) Double jeopardy does not attach where the criminal trial was a sham. (Galman v. Sandiganbayan, 1986) There is no double jeopardy when the accused are being prosecuted for an act or incident punished by four national statutes and not by an ordinance and a national statute. (Loney v. People, 2006) FINALITY-OF-ACQUITTAL DOCTRINE As a rule, an acquittal rendered by a court of competent jurisdiction after trial on the merits is immediately final and cannot be appealed because of double jeopardy. (People v. Sandiganbayan, 2010) The State is proscribed from appealing the judgment of acquittal through either a regular appeal under Rule 41 of the Rules of Court, or an appeal by certiorari on pure questions of law under Rule 45 of the same Rules. (People v. Nazareno, 2009) The finality-of-acquittal doctrine recognizes that the accused is entitled to repose as a direct consequence of the finality of his acquittal. The purposes of the doctrine are: 1. To prevent the State from using its criminal processes as an instrument of harassment against the accused; 2. It serves to preclude the State from successively retrying the accused in the hope of securing a conviction; and 3. It prevents the State from retrying the accused again in the hope of securing a greater penalty. (Villareal v. Aliga, 2014)

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DISMISSAL VIS-À-VIS ACQUITTAL Acquittal is always based on the merits; dismissal does not decide the case on the merits nor does it mean that the defendant is not guilty. (People v. Salico, 1949) If an act is punished by a law and an ordinance, even if they are considered as different offenses, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Manantan v. CA, 2001) If a single act is punished by two different provisions of law or statutes, but each provision requires proof of an additional fact which the other does not so require, neither conviction nor acquittal in one will bar a prosecution for the other. (Perez v. CA, 1988) TESTS FOR DETERMINING WHETHER THE TWO OFFENSES ARE IDENTICAL 1. Same offense test 2. Same evidence test SAME OFFENSE TEST General Rule: There is an identity between 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. (Carmelo v. People, 1950) Exceptions: 1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. 3. The plea of guilty to the lesser offense was made without consent of the prosecutor and of the offended party; except when the offended party failed to appear during the arraignment. In any of these instances are present, such period of the sentence as may have been served by accused under the former conviction shall be credited against and deducted from the sentence he has to serve should he be convicted under the subsequent prosecution. SAME EVIDENCE TEST Whether the facts as alleged in the second information, if proved, would have been sufficient to sustain the former information, or from which accused may have been acquitted or convicted. (People v. Silva, 1962) PROVISIONAL DISMISSAL The concept of a provisional dismissal contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the Rules of Court. The provisional dismissal of the case does not operate as an acquittal since its dismissal was made with the express consent of the accused, thus, there is no double jeopardy. Saldariega v. Panganiban, 2015)

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REQUISITES OF A VALID PROVISIONAL DISMISSAL 1. There must be express consent of the accused; and 2. There must be notice to the offended party. Only upon compliance of the above requisites can the time-bar rule operate. The express consent of the accused in order to bar him from subsequently asserting that the revival of the criminal case will place him in double jeopardy for the same offense or for an offense necessarily included therein. Express consent to a provisional dismissal is given either viva voce or in writing. (People v. Lacson, 2003) TIME-BAR RULE 1. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. 2. The provisional dismissal of offenses punishable by imprisonment of more than six (6) years shall become permanent two (2) years after issuance of the order without the case having been revived. (Sec. 8, Rule 117) ADDITIONAL RULES ON PROVISIONAL DISMISSAL In the following instances, the court can provisionally dismiss the action with the express consent of the accused: 1. When the delays are due to the absence of an essential witness whose whereabouts are unknown or cannot be determine and, therefore, are subject to exclusion in determining compliance with the prescribed time limits which cause the trial to exceed one hundred eighty (180) days; 2. When the delays are due to the absence of an essential witness whose presence cannot be obtained by due diligence although his whereabouts are known, provided: a. The hearing in the case has been previously twice postponed due to the non-appearance of the essential witness and both the witness and the offended party, if they are two different persons, have been given notice of the setting of the case for third hearing, which notice contains a warning that the case would be dismissed if there is a continuous absence; b. There is proof of service of the notices of hearings or subpoena at their last known postal or e-mail addresses or mobile phone numbers. (Sec. 10, A.M. No. 12-11-2-SC) The public or private prosecutor shall first present during the trial the essential witness or witnesses to the case before anyone else. (Riano) An essential witness is one whose testimony dwell on the presence of some or all of the elements of the crime and

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whose testimony is indispensable to the conviction of the accused. (Riano) General Rule: Where the case was dismissed “provisionally” with the consent of accused, he cannot invoke double jeopardy in another prosecution therefor or where the case was reinstated on a motion for reconsideration by the prosecution. (People v. Lacson, 2003) Exceptions: Where the dismissal was actually an acquittal based on: 1. Lack or insufficiency of the evidence; or 2. Denial of the right to speedy trial. REVIVAL OF CASE PROVISIONALLY DISMISSED In an action for violation of the Comprehensive Dangerous Drugs Act, the case was provisionally dismissed due to failure of prosecution’s principal witness to attend series of hearing, the state may cause the revival of the case provided it is done within the period provided under Sec. 8(2), Rule 117 of the Rules of Court. (Saldariega v. Panganiban, 2015) EFFECT OF DISMISSAL OF THE CASE AGAINST THE PRINCIPALS TO THE ACCOMPLICES In an action against accomplices under the Anti Hazing Law, the dismissal of the case against the principals does not ipso facto result in the dismissal of the case against the accomplices especially when the occurrence of the crime has in fact been established. (People v. Bayabos, 2015)

I.

PRE-TRIAL (RULE 119)

PRE-TRIAL A pre-trial is a proceeding conducted before trial of the case for the purpose of considering certain matters. A pre-trial is mandatory in all civil (Sec. 2, Rule 18) and criminal cases (Sec. 1, Rule 118). Pre-trial is mandatory in all criminal cases cognizable by the following courts: 1. Sandiganbayan; 2. RTC; 3. MeTC, MTCC, MTC, and MCTC. (Sec. 1, Rule 118) WHEN HELD 1. Within thirty (30) days after arraignment; 2. Within ten (10) days if the accused is under preventive detention; 3. Where the direct testimonies of the witnesses are to be presented through judicial affidavits, the court shall give the prosecution not more than twenty (20) days from arraignment within which o prepare and submit their judicial affidavits in time for the pre-trial conference. (Sec. 8(c), A.M. No. 12-11-2-SC) MATTERS TO BE CONSIDERED DURING PRE-TRIAL CONFERENCE 1. Plea bargaining; 2. Stipulation of facts;

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3. 4. 5. 6.

Marking for identification of evidence of the parties; Waiver of objections to admissibility of evidence; Modification of the order of trial if the accused admits the charge but interposes a lawful defense; and Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case (Sec. 1, Rule 118).

PLEA BARGAINING Plea bargaining is a process whereby the accused and the prosecution work a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence that that for the graver charge. (Daan v. Sandiganbayan, 2008) REQUISITES FOR A PLEA OF GUILTY TO A LESSER OFFENSE The accused may plead guilty to a lesser offense provided: 1. The lesser offense is necessarily included in the offense charged; and 2. The plea must be with the consent of both the offended party and the prosecutor. (Sec. 2, Rule 116) The consent of the offended party will not be required if said party, despite due notice, fails to appear during the arraignment. (Sec. 1(f), Rule 116) If accused entered a plea to a lesser offense without the consent of the offended party and the prosecutor and he was convicted, his subsequent conviction of the crime charged would not place him in double jeopardy. The acceptance of an offer to plead guilty to a lesser offense is a matter addressed entirely to the sound discretion of the trial court. (Daan v. Sandiganbayan, 2008) An offense is necessarily included in another when some of the essential elements or ingredients of the former as alleged in the complaint or information constitute the latter and vice versa. (Daan v. Sandiganbayan, 2008) PRE-TRIAL AGREEMENT All agreements and admissions made or entered during the pre-trial conference shall be: 1. Reduced in writing; and 2. Signed by the accused and counsel. Failure to comply with the above requirements renders inadmissible the said admissions against the accused. (IB(8), A.M. 03-1-09-SC) All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties and/or their counsels. (I-B(5), A.M. 03-1-09-SC) NON-APPEARANCE AT PRE-TRIAL If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an

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acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. (Sec. 3, Rule 118, Rules of Court) PRE-TRIAL ORDER Within ten (10) days after the termination of the pre-trial, the trial judge shall issue a Pre-trial Order setting forth: 1. The actions taken during the pre-trial conference; 2. The facts stipulated; 3. The admissions made; 4. The evidence marked; 5. The number of witnesses to be presented; and 6. The schedule of the trial. The Pre-trial Order shall bind the parties, limit the trial to matters not disposed of and control the course of the action during trial, unless modified by the court to prevent manifest injustice. (I-B(10), A.M. 03-1-09-SC) To prevent manifest injustice, the Pre-trial Order may be modified by the court, upon its own initiative or at the instance of any party. Unlike in civil cases, modifications of the pre-trial order in criminal cases may be made even during trial. (1997 Bar) PRE-TRIAL IN A CIVIL CASE VIS-À-VIS PRE-TRIAL IN A CRIMINAL CASE Pre-trial in a Civil Case Proceeded by a motion ex parte.

Pre-trial in a Criminal Case No motion is required to be filed.

Set after the motion is filed.

Ordered after arraignment and within thirty (30) days after the court acquires jurisdiction.

The sanction for nonappearance is imposed on the non-appearing party.

The sanction for nonappearance is imposed on the counsel of the accused or the prosecutor.

Pre-trial briefs must be submitted.

Pre-trial briefs required.

There is no strict warning on admissions made.

Admissions must be in writing and signed, otherwise, it is inadmissible.

are

not

Referral of some cases for court annexed mediation and judicial dispute resolution JUDICIAL DISPUTE RESOLUTION Judicial Dispute Resolution (JDR) is a concept seeking to resolve mediatable cases through mediation and conciliation at the level of the judge, thereby increasing the satisfaction of litigants in the court process and also helping to decongest the dockets of the judiciary. It is also done in order to expedite the resolution of cases. Judicial proceedings is divided into two stages:

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1. 2.

From the filing of the complaint, to the conduct of CAM (Court-Annexed Mediation) and JDR during the pre-trial stage; and Pre-trial proper to trial and judgment.

The JDR judge, to whom the case has been originally raffled, shall preside over the first stage in order to conduct the CAM and JDR. If the mediation did not succeed, the JDR judge cannot preside over the trial of the same case. After the arraignment, the court shall forthwith set the pre-trial conference within 30 days from the date of arraignment, and issue an order 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. (AM No. 03-109) CASES SUBJECT TO MEDIATION FOR JDR 1. All civil cases, settlement of estates, and cases covered by the Rules on Summary Procedure, except those which by law may not be compromised; 2. Cases cognizable by the Lupong Tagapamayapa; 3. The civil aspect of B.P. 22 cases; 4. The civil aspect of quasi-offenses under Title 14 of the RPC; 5. The civil aspect of estafa and libel; 6. The civil aspect of theft. (Riano)

J. TRIAL (RULE 119) INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW 1. At arraignment and plea, whether of innocence or guilt; 2. During trial, whenever necessary for identification purposes; and 3. At the promulgation of sentence, unless it is for a light offense, in which case, the accused may appear by counsel or representative (People v. De Grano, 2009). NOTE: The accused must be present at the arraignment and must personally enter his plea. (Sec. 1(b), Rule 116) WHEN TRIAL SHALL COMMENCE 1. Trial shall be set not later than thirty (30) days from the termination of the pre-trial conference. 2. After a plea of not guilty is entered, the accused shall be given at least fifteen (15) days to prepare for trial. (Sec. 1, Rule 119) REQUISITES BEFORE A TRIAL CAN BE SUSPENDED ON ACCOUNT OF THE ABSENCE OF A WITNESS 1. The essential witness is absent or unavailable; 2. The witness must be an essential witness. (Casilan v. Gancatco, 1958)

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To justify the delay, the witness must be an “essential” witness or one who is “indispensable, necessary or important in the highest degree.” (Black’s Law Dictionary) ABSENCE OF A WITNESS An essential witness is considered absent in either of the following situations: 1. His whereabouts are unknown; or 2. His whereabouts cannot be determined by due diligence. (Sec. 3(b), Rule 119) UNAVAILABILITY OF A WITNESS A witness is considered unavailable, even if his whereabouts are known, provided that his presence for the trial cannot be obtained by due diligence. (Sec. 3(b), Rule 119) CONTINUOUS TRIAL As a rule, once commenced, the trial shall continue from day to day as far as practicable until terminated but it may be postponed for a reasonable period of time for good cause. In setting the case for continuous trial, the court shall consult with the prosecutor and defense counsel. (Sec. 2, Rule 119) TRIAL PERIOD The entire trial period shall not exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the SC. (Sec. 2, Rule 119) POSTPONEMENT OR CONTINUANCE OF TRIAL A postponement or continuance is subject to judicial discretion. The factors to be considered for granting a continuance are: 1. Whether or not the failure to grant a continuance would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; or 2. Whether or not the case, taken as a whole, is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time established therein. (Sec. 4, Rule 119) The rule grounds: 1. 2. 3.

prohibits continuance based on the following Congestion of the court’s calendar; Lack of diligent preparation; or Failure to obtain available witnesses on the part of the prosecutor. (Sec. 4, Rule 119)

ORDER OF TRIAL 1. The prosecution shall present its evidence to: a. Prove the charge; and b. Prove the civil liability in the proper case. 2. The accused may then present his evidence to: a. Prove his defense; and b. Prove the damages he sustained, if any, arising from the issuance of a provisional remedy in the case. 3. The prosecution may present it rebuttal evidence, unless the court allows it to present additional evidence bearing on the main issue;

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The accused may present sur-rebuttal evidence, unless the court allows it to present additional evidence bearing on the main issue; Upon submission of the evidence of the parties, the case shall be deemed submitted for decision, unless the court directs them to argue orally or to submit written memoranda. (Sec. 11, Rule 119)

REVERSE TRIAL The order of the trial may be modified when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense. (Sec. 11(e), Rule 119) TRIAL IN ABSENTIA An accused need not always be present in every hearing although it is his right to be present, if he so desires, from arraignment to the rendition of the judgment. This right stems from his constitutional right to meet the witnesses against him face-to-face and other rights under the Bill of rights. While the right to be present may be waived, it does not necessarily mean that the accused may be tried in his absence (trial in absentia). Such waiver of the accused’s right to be present in trial does not mean that he is released from his obligation under the bond to appear in court whenever so required. Once an accused escapes from prison or confinement, he loses his standing in court and is deemed to have waived any right to seek relief from the court unless he surrenders or submits to the jurisdiction of the court. (People v. Licayan, 2002) REQUISITES WHEN THE ACCUSED MAY BE TRIED IN ABSENTIA 1. The accused has already been arraigned; 2. The accused has been duly notified of the trial or hearings; and 3. The absence of the accused or his failure to appear is unjustified. (Sec. 14(2), Art. III, 1987 Constitution) REMEDY WHEN THE ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD If the accused is not brought to trial in accordance with the time limit set by Sec. 6, Rule 119 of the Rules of Court, the information may be dismissed upon motion of the accused, and on the ground of the denial of his right to speedy trial. However: 1. The accused has the burden of proving the ground for his motion; and 2. The prosecutor shall have the burden of going forward with the evidence to establish that the delay belongs to the exclusion of time mentioned in Sec. 3, Rule 119 of the Rules of Court. In case of dismissal on the ground of denial of the right to speedy trial, the dismissal shall be subject to the rules on double jeopardy. (Sec. 9, Rule 119)

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To be afforded such dismissal, the court shall take into consideration the following factors: 1. Duration of the delay; 2. Reasons for the delay; 3. Assertion of his right to speedy trial; and 4. Prejudice caused to him by such delay. (Mari and People v. Hon. Gonzales, 2011) NOTE: This motion must be filed before trial; otherwise, it shall be considered waived. DELAYS TO BE EXCLUDED IN COMPUTING THE PERIOD FOR COMMENCEMENT OF TRIAL Such delays include, but are not limited to, the following: 1. Delay resulting from an examination of the physical and mental condition of the accused; 2. Delay resulting from proceedings with respect to other criminal charges against the accused; 3. Delay resulting from extraordinary remedies against interlocutory orders; 4. Delay resulting from pre-trial proceedings; provided that the delay does not exceed thirty (30) days; 5. Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; 6. Delay resulting from a finding of the existence of a prejudicial question; 7. Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement; 8. Delay resulting from the absence or unavailability of an essential witness; 9. Delay resulting from the mental incompetence or physical inability of the accused to stand trial; 10. Delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge if the information is dismissed upon motion of the prosecution and, thereafter, a charge is filed against the accused for the same offense; 11. Delay which is reasonable, when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted; 12. Delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. (Sec. 3, Rule 119) DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS General Rule: When two or more accused are jointly charged for an offense, they shall be tried jointly, unless the court, in its discretion, and upon motion of the prosecutor orders a separate trial for one or more of the accused. (Sec. 16, Rule 119)

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Exception: One or more of the accused tried jointly with the others may be discharged with their consent so that they may be witnesses for the state. For this purpose, the prosecutor shall comply with the following: 1. File a motion for the discharge of the accused; and 2. File the motion before the prosecution rests its case. (Sec. 17, Rule 119) Upon hearing of the motion, the court shall require the prosecution to present evidence and the sworn statement of each proposed state witness. The court shall then conduct a hearing in support of the discharge. (Sec. 17, Rule 119, Rules of Court) The prosecution may discharge an accused as a state witness under its prosecutorial prerogative. However, once the information has been filed in court, the witness may only be discharged when the court allows it. REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS: 1. Two or more accused are jointly charged; 2. The motion for discharge is filed by the prosecutor before it rests its case; 3. The prosecution is required to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge; 4. The accused gives consent to be a state witness; and 5. The trial court is satisfied that: a. There is absolute necessity for the testimony of the accused whose discharge is requested; b. There is no other direct evidence available for the proper prosecution of the offense committed except the testimony of the accused; c. The testimony of said accused can be substantially corroborated in its material points; d. Said accused does not appear to be the most guilty; and e. Said accused has not at any time been convicted of any offense involving moral turpitude. (Sec. 17, Rule 119, Rules of Court) The witness need not be the least guilty. It is sufficient that he or she should not appear to be the most guilty. (Jimenez, Jr. v. People, 2014) The absence of any of the requisites for the discharge of a particeps criminis is a ground for objection to the motion for his discharge. However, such objection must be raised before the discharge is ordered. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS If the motion is granted: 1. The evidence adduced during the discharge hearing shall automatically form part of the trial. (Sec. 17, Rule 119) 2. The discharge of the accused shall amount to an acquittal and shall be a bar to another

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4. 3.

prosecution for the same offense, except if the accused fails or refuses to testify against his coaccused in accordance with his sworn statement constituting the basis for his discharge. (Sec. 18, Rule 119) Failure to testify refers exclusively to defendant’s will or fault. Where an accused becomes a state witness on the promise of immunity, but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him.

If the motion is denied: 1. The accused’s sworn statement shall be inadmissible in evidence. (Sec. 17, Rule 119) 2. The proposed state witness shall be prosecuted like his co-accused. It is not required that the state witness’ testimony convict the accused. Regardless of the judgment, the accused who becomes a state witness shall enjoy immunity. STATE WITNESS RULE Where a motion for the discharge of the witness as an accused pursuant to the witness protection program was granted by the trial court judge, no grave abuse of discretion could be ascribed against the judge provided that the testimony of the accused is a matter of absolute necessity, that his testimony is substantially corroborated, and that he does not appear to be the most guilty (Jimenez v. People, 2014). DEMURRER TO EVIDENCE A demurrer to evidence is an objection of one of the parties to the effect that the evidence his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. (People v. Sandiganbayan, 2015) Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient, the evidence must prove: 1. The commission of the crime; and 2. The precise degree of participation therein by the accused. WHEN FILED A demurrer to evidence is actually a motion to dismiss that is filed by the accused after the prosecution has rested its case. (Sec. 23, Rule 119) NOTE: Not every motion to dismiss is a demurrer to evidence. If the motion to dismiss is not grounded upon the insufficiency of the evidence, then it is not a demurrer under Rule 119 of the Rules of Court. In determining whether the motion filed is a demurrer to evidence or just a motion to dismiss, the following must be considered: 1. The allegations in it must be made in good faith; 2. The stage of the proceeding at which it is filed; and

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3.

The primary objective of the party filing it.

It may be filed in civil cases (Rule 33) or in special proceedings. (Sec. 2, Rule 72) A demurrer to evidence filed before the prosecution rests its case is premature. (Magleo v. De Juan-Quinagoran, 2014) NOTE: The court may, on its own initiative, dismiss the action without waiting for a demurrer from the accused also on the ground of insufficiency of evidence. However, the court shall do so only after giving the prosecution the opportunity to be heard. (Sec. 23, Rule 119) KINDS OF A DEMURRER TO EVIDENCE BY THE ACCUSED 1. With leave of court 2. Without leave of court DEMURRER TO EVIDENCE WITH LEAVE OF COURT 1. A motion for leave of court to file a demurrer to evidence shall be filed by the accused, specifically stating the grounds therefor and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. 2. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. (Sec. 23, Rule 119) 3. If granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. 4. The prosecution may oppose the motion within a similar period from its receipt. (Sec. 23, Rule 119) 5. If the demurrer is granted, the case is dismissed and the same shall amount to an acquittal. (Mupas v. People, 2011) 6. If the demurrer is denied, the accused may present evidence in his defense (Sec. 23, Rule 119), then to appeal if he is convicted. DEMURRER TO EVIDENCE WITHOUT LEAVE OF COURT 1. If granted, the case is dismissed and the effect is an acquittal. 2. If denied, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (Sec. 23, Rule 119, Rules of Court) Filed with Leave of Court The accused may still adduce evidence in his defense. Assists in determining whether demurrer was filed to merely stall the proceedings.

Filed Without Leave of Court The accused waives his right to present evidence Submits the case for judgment on the basis of the prosecution’s evidence.

EFFECT OF A DEMURRER TO EVIDENCE If the demurrer is granted: 1. It shall amount to the accused’s acquittal to the crime charged.

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It cannot be appealed because it would place the accused in double jeopardy. The order granting a demurrer is reviewable only by certiorari under Rule 65 of the Rules of Court upon showing that it was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

K. JUDGMENT (RULE 120) JUDGMENT A judgment is an 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) REQUISITES OF A JUDGMENT The formal requisites of a judgment are: 1. It must be written in the official language; 2. It must be personally and directly prepared and signed by the judge; 3. It must contain clearly and distinctly a statement of: a. The facts; and b. The law upon which it is based. (Sec. 1, Rule 120) Judgement rendered by a judge who did not hear the case does not render the judgment erroneous, especially where the evidence on record is sufficient to support its conclusion. (People v. Alfredo, 2010) A petition for mandamus is proper to compel the judge to put in writing the decision because it is his duty to do so. The jurisdictional requirements before a judgment may be validly rendered in a criminal case are: 1. Jurisdiction over the subject matter; (1) Jurisdiction over the territory; and (2) Jurisdiction over the person of the accused. KINDS OF JUDGMENT A judgment may be rendered for the: 1. Conviction of the accused; or 2. Acquittal of the accused. CONTENTS OF A JUDGMENT OF CONVICTION 1. 2. 3.

4. 5.

The legal qualification of the offense constituted by the acts committed by the accused; The aggravating and mitigating circumstances which attended the commission of the offense; The participation of the accused in the offense whether as: a. Principal; b. Accomplice; or c. Accessory. The penalty imposed upon the accused; The civil liability or damages caused by his wrongful act or omission, if any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. (Sec. 2, Rule 120)

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CONTENTS OF A JUDGMENT OF ACQUITTAL 1. Whether or not the evidence of the prosecution: a. Absolutely failed to prove the guilt of the accused; or b. Merely failed to prove his guilt beyond reasonable doubt; 2. A determination if the act or omission from which the civil liability might arise did not exist. (Sec. 2, Rule 120) A verdict of acquittal is immediately final and executory upon its promulgation. The State may not seek its review without placing the accused in double jeopardy. (Barbers v. Laguio, Jr., 2001) If the accused was acquitted based on reasonable doubt, his civil liability arising from the crime charged, which has caused damaged to another, can still be proven by a lower quantum of evidence. (Lontoc v. MD Transit, 1988) An acquittal of an accused based on reasonable doubt does not bar the offended party from filing a separate civil action based on other sources of obligation. (People vs. Bayotas, 1994) Since a judgment of acquittal is immediately executory, the court cannot thereafter issue a judgment against the bondsman who failed to bring the accused to court during trial. (Belfast Surety and Insurance Co., Inc. v. People, 1982) DUPLICITOUS COMPLAINT OR INFORMATION A duplicitous complaint or information is one where there are two or more offenses in a single information or complaint. General Rule: A complaint or information must charge only one offense. Exception: When the law prescribes a single punishment for various offenses, such as for: 1. Complex crimes; 2. Special complex crimes; 3. Continuous crimes; 4. Crimes susceptible of being committed in various modes; and 5. Crimes of which another offense is an ingredient. Duplicity of the offense is ground for a motion to quash. An objection to a complaint or information which charges more than one offense must be timely interposed before trial (Sec. 3, Rule 120, Rules of Court). Failure to object on the ground of duplicity of the offense constitutes a waiver and the accused may be found guilty of as many offenses as those charged and proved during the trial. (Riano) VARIANCE DOCTRINE General Rule: The accused may be convicted only of the crime with which he is charged as this is based on his right to be informed of the nature of the offense with which he is charged.

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Exception: The rule on variance.

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information charging the proper offense. (Sec. 4, Rule 120)

The variance referred to in Sec. 4, Rule 120 of the Rules of Court is a situation where: 1. The offense proved is different from the offense charged in the complaint or information; and 2. The offense as charged is either included in the offense proved or necessarily includes the offense proved.

PROMULGATION OF JUDGMENT Promulgation is an official proclamation announcement of the judgment or order.

Pursuant to the variance doctrine, the accused may be convicted of the offense proved which is included in the offense charged, or the offense charged which is included in the offense proved. (Sec. 4, Rule 120)

Exception: 1. If the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. 2. The judgment may be promulgated by the clerk of court if the judge is absent or outside the province or city. (Sec. 6, Rule 120) 3. 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 judgment. (Sec. 6, Rule 120)

Variance between the allegation and the proof cannot justify a conviction for either the offense charged or the offense proved unless either is included in the other. (Sec. 4, Rule 120) WHEN AN OFFENSE INCLUDES OR IS INCLUDED IN ANOTHER An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. (People v. Pareja, 2014) General Rule: If what is proved by the prosecution evidence is an offense which is included in the offense charged in the information, accused may validly be convicted of the offense proved. Exception: Where facts supervened after the filing of information which change the nature of the offense. While a criminal negligent act is not a simple modality of a willful crime but a distinct crime in itself, designated as a quasi-offense, a conviction for a criminal negligent act can be under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense (Samson v. CA, 1958). An accused who had committed a lesser offense includible within the offense charged cannot be convicted of a lesser offense if it has already prescribed. (Francisco v. CA, 1983) JUDGMENT IN CASE OF VARIANCE BETWEEN THE ALLEGATION AND PROOF 1. When the offense proved is less serious than, and is necessarily included in, the offense charged, the defendant shall be convicted of the offense proved. 2. When the offense proved is more serious than, and includes the offense charged, the defendant shall be convicted of the offense charged. 3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, the court should dismiss the action and order the filing of new

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or

General Rule: The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered.

The judgment or sentence does not become a judgment or sentence in law until it: 1. Is read and announced to the defendant; or 2. Has become a part of the record of the court. (U.S. v. CFI of Manila, 1913) When there is no promulgation of judgment, no right to appeal accrues. PRESENCE OF THE ACCUSED IN PROMULGATION General Rule: The accused must be present at the promulgation of sentence. Exception: If it is for a light offense, in which case, the accused may appear by counsel or representative (People v. De Grano, 2009). INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA If the accused fails to appear at the scheduled promulgation of judgment despite notice, the promulgation shall not be suspended; instead, it shall be made by: 1. Recording the judgment in the criminal docket; and 2. Serving him a copy thereof at his last known address or through his counsel. If the judgment is for conviction, and the failure of the accused to appear was without justifiable cause, the consequences are more severe. He shall: 1. Lose the remedies available in the Rules of Court against the judgment; and 2. The court shall order his arrest. However, he shall be given a chance to avail of the remedies against judgment as long as within fifteen (15) days from promulgation of judgment, he surrenders and files a motion for leave of court to avail of the remedies. He shall state the reason for his absence and, if he proves

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the absence was justified, he shall be allowed to avail of the remedies within fifteen (15) day from notice. (Sec. 6, Rule 120) When the accused on bail fails to present himself at the promulgation of a judgment of conviction, he is considered to have lost his standing in court. Without any standing in court, the accused cannot invoke its jurisdiction to seek relief. (Jaylo v. Sandiganbayan, 2015) NOTIFICATION OF THE PROMULGATION General Rule: The notice shall be given by the clerk of court to the accused personally or through his bondsman or warden and counsel. Exception: 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) MODIFICATION OF JUDGMENT A judgment of conviction may be modified or set aside by the court: 1. Upon motion of the accused; and 2. Before the judgment becomes final or before appeal is perfected. (Sec. 7, Rule 120) NOTE: The judgment cannot be modified or set aside motu proprio.

4. 5.

Motion for reconsideration (Sec. 1, Rule 120); Appeal from the judgment (Rule 122).

L. NEW TRIAL OR RECONSIDERATION (RULE 121) MOTION FOR NEW TRIAL OR RECONSIDERATION A motion for new trial or motion for reconsideration is filed by the accused when judgment has been rendered adverse to him. GROUNDS FOR NEW TRIAL 1. Errors of law have been committed during trial; 2. Irregularities prejudicial to the substantial rights of the accused have been committed during the trial; or 3. New and material evidence has been discovered. (Sec. 2, Rule 121, Rules of Court) In this jurisdiction, the court has ordered a new trial in criminal cases on grounds not mentioned in the statute, such as the retraction of a witness, negligence or incompetency of counsel, improvident plea of guilty, disqualification of an attorney de officio to represent the accused in the trial court, and where a judgment was rendered on a stipulation of facts entered into by both the prosecution and the defense. (Jose v. CA, 1976)

The prosecutor cannot ask for a modification or the setting aside of a judgment of conviction because the rules clearly provide that a modification or setting aside of a judgment of conviction may be done by the court only upon motion of accused.

Mistakes or errors of counsel in the conduct of his case are not grounds for new trial. This rule is the same whether the mistakes are the result of ignorance, inexperience, or incompetence. (U.S. v. Umali, 1910)

A judgment of acquittal becomes final immediately after promulgation and it cannot be recalled for correction or amendment.

If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, litigation may be reopened. (Hilario v. People, 2008)

WHEN JUDGMENT BECOMES FINAL 1. When the period for perfecting an appeal has lapsed; 2. When the sentence has been partially or totally satisfied or served; 3. When the accused expressly waives in writing his right to appeal; and 4. When the accused has applied for probation. (Sec. 7, Rule 120) The trial court can validly amend the civil portion of its decision within fifteen (15) days from promulgation thereof even though an appeal had already been perfected by the accused from a judgment of conviction. PROBATION Appeal and probation are mutually exclusive remedies, hence, applying for probation is necessarily deemed a waiver of one’s right to appeal. Implicit in an application for probation is an admission of guilt. (Almero v. People, 2014) REMEDIES BEFORE A JUDGMENT OF CONVICTION BECOMES FINAL 1. Modification of judgment (Sec. 7, Rule 120); 2. Reopening of proceedings (Sec. 24, Rule 119); 3. Motion for new trial (Sec. 1, Rule 121);

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GROUNDS FOR RECONSIDERATION 1. Errors of law in the judgment which requires no further proceedings; and 2. Errors of fact in the judgment which also requires no further proceedings. (Sec. 3, Rule 121)

REQUISITES FOR A NEW TRIAL ON THE GROUND OF NEWLY-DISCOVERED EVIDENCE 1. The evidence must have been discovered after the trial; 2. It could not have been previously discovered and produced at the trial even with the exercise of reasonable diligence; 3. It is a new and material evidence; and 4. It should not be merely cumulative, corroborative or impeaching. 5. If introduced and admitted, it would probably change the judgment. (Sec. 2, Rule 121) FORM OF THE MOTIONS The motion for new trial or reconsideration shall: 1. Be in writing; and 2. State the grounds on which it is based;

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Be given to the prosecutor through notice. (Sec. 4, Rule 121)

2.

If based on newly-discovered evidence, the motion must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. (Sec. 4, Rule 121)

3.

3.

WHO MAY FILE The accused may file a motion for new trial or motion for reconsideration of the judgment adverse to him. The court, however, may also, at its own instance, grant a new trial or a reconsideration of the judgment but with the consent of the accused. (Sec. 1, Rule 121) WHEN FILED The motion for new trial or motion for reconsideration must be filed before the judgment of conviction becomes final or within fifteen (15) days from promulgation of judgment. Once the judgment becomes final, pleas for new trial or reconsideration can no longer be entertained. (Tadeja v. People, 2013) WHEN HEARING IS REQUIRED A hearing shall be conducted when the motion for new trial calls for a resolution of a question of fact. The court may hear evidence on the motion by affidavits or otherwise. (Sec. 5, Rule 121) EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION In all cases, the original judgment shall be set aside or vacated and a new judgment shall be rendered accordingly. Other effects that would depend upon the ground availed of: 1. When a new trial is granted on the grounds of errors of law or irregularities during the trial, all proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. 2. When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall stand. The newlydiscovered evidence, together with other evidence which the court may allow in the interest of justice, shall be taken and considered together with the evidence already in the record. (Sec. 6, Rule 121) APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES The Neypes rule gives the movant a fresh period of fifteen (15) days within which to file an appeal, counted from receipt of the order dismissing a motion for new trial or motion for reconsideration The fresh period rule shall also apply to: 1. Rule 40 of the Rules of Court governing appeals from the Municipal Trial Courts to the Regional Trial Courts;

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4.

Rule 42 of the Rules of Court on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 of the Rules of Court on appeals from quasi-judicial agencies to the Court of Appeals; and Rule 45 of the Rules of Court governing appeals by certiorari to the Supreme Court.

The fresh period rule applies to appeals in criminal cases, particularly to Sec. 6, Rule 122 of the Rules of Court. (Yu v. Tatad, 2011)

M. APPEAL (RULES 122, 123, 124, AND 125) APPEAL The right to appeal is not a natural right nor a part of due process but merely a statutory privilege. As a consequence, the right to appeal may be exercised only in the manner and in accordance with the provisions of law. (Estarija v. People, 2009) From a judgment convicting the accused, two appeals may accordingly be taken: 1. The accused may seek a review of said judgment, as regards both actions; or 2. The complainant may appeal with respect only to the civil action, either because the lower court has refused or failed to award damages, or because the award made is unsatisfactory to him. WHO MAY APPEAL General Rule: Any party may appeal from a judgment or final conviction. Exception: When the accused will be placed in double jeopardy. (Sec. 1, Rule 122) Exception to the exception: When the accused himself appeals from a judgment of conviction; in which case he waives the protection on the prohibition against double jeopardy. (Philippine Rabbit v. People, 2004) When the accused appeals from a final conviction, he runs the risk of being sentenced to a penalty higher than that imposed by the trial court. (Philippine Rabbit v. People, 2004) If there is a dismissal of a criminal case or an acquittal of the accused, it is only the Office of the Solicitor General (OSG) that may bring an appeal before the CA or SC on the criminal aspect representing the People. (People v. Nano, 1992) In cases elevated to the Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People, except in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14A, issued in 1986. (Sec. 4, R.A. 8249) The private complainant or the offended party may file an appeal or a special civil action without the intervention of

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the OSG but only insofar as the civil liability of the accused is concerned.

be stayed as to the appealing party. (Sec. 11(c), Rule 122)

EFFECT OF AN APPEAL 1. An appeal throws the case wide open for review and the reviewing tribunal can correct errors or even reverse the trial court’s decision on grounds other than those that the parties raised as error. (Guy v. People, 2009) 2. When the accused appeals from a final conviction, he waives the protection on the prohibition against double jeopardy and runs the risk of being sentenced to a penalty higher than that imposed by the trial court. (Philippine Rabbit v. People, 2004) 3. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall

The benefit of the stay of execution afforded to a coaccused, who timely files an appeal, cannot be extended to those who failed to file the same. The period to appeal shall continue to run against the accused who failed to appeal even if his co-accused appealed. (Lubrica v. People, 2007) Final Judgment

It is one which would become final if no appeal is taken.

Final Order It is one which disposes of the whole subject matter or terminates a particular issue leaving nothing to be done but to enforce by execution what has been determined.

WHERE AND HOW TO APPEAL Judgment appealed from

Where to appeal

How to appeal

MTC, MeTC or MCTC

RTC

Notice of appeal

MTC, MeTC, MCTC or RTC

Sandiganbayan (if the accused is a government official or employee and the act is dutyrelated)

With the Sandiganbayan

RTC (in the exercise of its original jurisdiction)

CA (if it involves questions of fact and of law)

With the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

RTC (in the exercise of its appellate jurisdiction)

CA (if it involves questions of fact and of law)

RTC (in the exercise of its original jurisdiction)

SC (if it involves pure questions of law)

CA or Sandiganbayan

SC

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Notice of appeal

Petition for Review under Rule 42 of the Rules of Court Petition for Review on Certiorari under Rule 45 of the Rules of Court Petition for Review under Certiorari under Rule 45 of the Rules of Court

Where filed With the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

With the CA With the SC

With the SC

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Neither the Constitution nor the Rules of Criminal Procedure exclusively vests in the Supreme Court the power to hear cases on appeal in which only an error of law is involved (Tan v. People, 2002).

issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trial and further proceedings. (Sec. 12, Rule 124)

Error of Judgment One which the court may commit in the exercise of its jurisdiction.

WITHDRAWAL OF APPEAL Despite the perfection of an appeal, the RTC or MTC may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court. When the appeal is withdrawn, the judgment becomes final. (Sec. 12, Rule 122, Rules of Court)

It is reviewable by appeal.

Error of Jurisdiction One which renders an order or judgment void or voidable. It is reviewable by certiorari.

WHEN APPEAL IS TO BE TAKEN An appeal must be taken within fifteen (15) days from: 1. Promulgation of judgment; or 2. Notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run. (Sec. 6, Rule 122) SERVICE OF NOTICE OF APPEAL General Rule: Notice of appeal should be served upon the adverse party or his counsel by personal service. Exceptions: 1. If this type of service cannot be made, service may be done by registered mail or by substituted service; or 2. If the appellee waives his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. (Sec. 5, Rule 122) TRANSMISSION OF THE PAPERS TO THE APPELLATE COURT (RTC) 1. Within five (5) days from the filing of the notice of appeal, the clerk of court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the complete record of the case, together with the notice of appeal. The original and the three (3) copies of the transcript of stenographic notes shall also be transmitted. A copy of the transcript shall remain in the lower court. (Sec. 8, Rule 122) 2. If the appellate court is the RTC, the clerk of court of the RTC shall notify the parties of the receipt of the complete record of the case, transcripts and exhibits. (Sec. 9(b), Rule 122) 3. Within fifteen (15) days from receipt of said notice, the parties may submit memoranda or briefs, or may be required by the RTC to do so. 4. The RTC shall then decide the case on the basis of the entire records of the case and of such memoranda or briefs as may have been filed. (Sec. 9(c), Rule 122) NOTE: If the case is appealed to the CA, the CA shall have the power to try cases and conduct hearings, receive evidence and perform all acts necessary to resolve factual

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If the withdrawal is sought when the case is already on appeal, the RTC may allow the appellant to withdraw his appeal provided: 1. A motion to withdraw is filed; and 2. The motion is filed before the RTC renders judgment on appeal. When the appeal is allowed to be withdrawn, the judgment of the court of origin will now become final and the case shall be remanded to the court of origin for execution. (Sec. 12, Rule 122) EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED General Rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. NOTE: In such cases, as to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. As to the co-accused who did not appeal, the judgment of the trial court insofar as it relates to him becomes final and the appellate court has no power to interfere with it. (Salvatierra v. CA, 1996) Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or to those who withdrew his appeal. (People v. Gandia, 2008) Despite the above exception, the execution of the judgment or final order appealed from shall be stayed as to the appealing party only. (Sec. 11(c), Rule 122) APPEAL FROM THE CIVIL ASPECT 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 (b), Rule 122) EFFECT OF DEATH OF AN ACCUSED PENDING THE APPEAL OF HIS CONVICTION The death of the accused will extinguish his personal criminal liability, however, his pecuniary liability can only be extinguished when his death occurs before final judgment. (People v. Bayotas, 2000) ORDER DENYING DEMURRER TO EVIDENCE As a general rule, there can be no appeal or certiorari on the denial of the demurrer to evidence, since it is an interlocutory order which does not pass judgment on the merits of the case. However, a party can still avail of the remedy of certiorari if the court which denied the same committed grave abuse of discretion amounting to lack or excess of jurisdiction. (MacapagalArroyo v. Sandiganbayan, 2017)

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AUTOMATIC APPEAL IN CRIMINAL CASES In cases where the penalty imposed is death, reclusion perpetua or life imprisonment, appeal to the SC or CA is a matter of right. A review of the trial court’s judgment of conviction is automatic and does not depend on the whims of the convicted felon. It is mandatory and leaves the reviewing court without any option. INTERMEDIATE REVIEW BY COURT OF APPEALS IN CASES OF AUTOMATIC REVIEW The proper course of action would be to remand these cases to the appellate court for the conduct of an intermediate review and not directly appeal them to the Supreme Court. The Court of Appeals has aptly been given the direct mandate to review factual issues. The Supreme Court , in the exercise of its rule-making power, can grant an additional intermediate appeal or review in favor of the accused. (People v. Mateo, 2004) GROUNDS FOR DISMISSAL OF APPEAL 1. 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. 2. The prosecution cannot appeal from a judgment of acquittal. 3. Appeal from dismissal of case upon filing of demurrer by the accused. 4. Dismissal due to the mistake of the trial court ruling that it had no jurisdiction (People v. Duran, 1960). 5. Appeal by People to correct an imposable penalty ruled by TC or to include in a judgment a penalty erroneously omitted is improper.

N. SEARCH AND SEIZURE (RULE 126) SEARCH WARRANT AND SEIZURE A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (Sec. 1, Rule 126) A seizure is the physical taking of a thing into custody. NATURE The laws and rules governing a search warrant is based upon the constitutional mandate that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause. In the absence of such warrant, the search and seizure becomes unreasonable. (Comerciante v. People, 2015) A search warrant is not a criminal action nor does it represent a commencement of a criminal prosecution. It is not a proceeding against a person but is solely for the discovery and to get possession of personal property. It is

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a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. (United Laboratories, Inc. v. Isip, 2005) Since a search warrant is not a criminal action, any aggrieved party may question an order quashing the same without need for the conformity of the public prosecutor. (Worldwide Web Corporation v. People, 2014) The Constitution requires that no warrant shall issue but upon probable cause, to be determined by the judge, and that the warrant shall particularly describe the things to be seized. SEARCH WARRANT VIS-À-VIS ARREST WARRANT Search Warrant Arrest Warrant Concerned with the Concerned with the seizure of personal seizure of a person so he property subject of the may be made to answer for offense, stolen or the commission of an embezzled property, fruits offense. of the offense, or those intended to be used to commit an offense. Probable cause is the Probable cause requires existence of sufficient facts sufficient facts that would and circumstances to show tend to show that a crime that particular things has been committed and connected with a crime are that a particular person found in a specific location. committed it. It is valid for ten (10) days only. It is generally served in the It may be served on any day time, unless there be a day and at any time of the direction in the warrant day or night. that it may be served at any time of the day or night. It does not require the It presupposes the existence of a criminal case existence of a pending and may be issued prior to criminal case that gave rise the filing of a case. to the warrant. WHERE AN APPLICATION FOR A SEARCH WARRANT IS FILED General Rule: An application for a search warrant shall be filed before any court within whose territorial jurisdiction a crime was committed. (Sec. 2(a), Rule 126) Exceptions: 1. The application may be made before any court within the judicial region where the crime was committed if the place of the commission of the crime is known; 2. The application may be filed before any court within the judicial region where the warrant shall be enforced; NOTE: For the first two exceptions, filing in such courts requires compelling reasons stated in the application. (Pilipinas Shell Petroleum Corporation v. Romars International Gases Corporation, 2015) 3. The application shall be made only in the court where the criminal action is pending, if the criminal action has already been filed. (Sec. 2(b), Rule 126)

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An application for a search warrant is heard ex-parte. It is neither a trial nor part of the trial. (Santos v. Pryce Gases, 2007) It must also be under oath and may not be done in public. REQUISITES FOR THE ISSUANCE OF A SEARCH WARRANT 1. It must be issued upon probable cause; 2. The probable cause must be determined by the judge himself; 3. In the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses he may produce; and 4. The warrant issued must particularly describe the place to be searched and persons or things to be searched. (People v. Tuan, 2010) PROBABLE CAUSE IN SEARCH WARRANTS Probable cause in the issuance of a search warrant 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. (Century Chinese Medicine Co. v. People, 2013) The determination of probable cause is wholly dependent on the finding of trial judges in the process of exercising their judicial function. (World Wide Web Corporation v. People, 2014) Probable cause is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. (Century Chinese Medicine Co. v. People, 2013) When a finding of probable cause for the issuance of a search warrant is made by a trial judge, the finding is accorded respect by reviewing courts, as long as there was substantial basis for that determination. (World Wide Web Corporation v. People, 2014) A search warrant can only be issue upon probable cause in connection with one specific offense. The legality of a seizure can be contested only by 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. PERSONAL EXAMINATION BY THE JUDGE OF THE APLICANT AND WITNESSES 1. The examination must be personally conducted by the judge; 2. The examination must be in the form of searching questions and answers; 3. The complainant and the witnesses shall be examined on those facts personally known to them; 4. The statements must be in writing and under oath; and 5. The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record. (Sec. 5, Rule 126)

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The applicant or his witnesses must have personal knowledge of the circumstances surrounding the commission of the offense being complained of. “Reliable information” is insufficient. Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses. (Yao, Sr. v. People, 2007) A deposition taken by Deputy Clerk of Court does not comply with the requirement. (Bache & Co. Phil. Inc. v. Ruiz, 1971) The examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. (Yao, Sr. v. People, 2007) PARTICULARITY OF THE PLACE OR PERSON TO BE SEARCHED AND THE ITEMS TO BE SEIZED The Rules do not require that the search warrant must name the person who occupies the described premises. The search warrant is issued for the search of specifically described premises only and not for the search of a person. The failure to name the owner or occupant of the property does not invalidate the warrant. (Quelnan v. People. 2007) The place to be searched cannot be changed, enlarged nor amplified by the police. (Al-Ghoul v. CA, 2001) The purpose of the rule requiring a particular description of the things to be searched is to limit the things to be seized to those described in the search warrant and to leave the officers of the law no discretion regarding what articles they shall seize. (Uy Kheytin v. Villareal, 1920) Warrants which do not describe the things to be seized with the required particularity are called general warrants. The particularity of the description of the place to be searched and the things to be seized is required “wherever and whenever it is feasible.” A search warrant need not describe the items to be seized in precise and minute detail. (World Wide Web Corporation v. People, 2014) The use of a generic term or a general description in a warrant is allowed only when a more specific description of the things to be seized is not available. (Uy v. BIR, 2000) GENERAL WARRANTS A general warrant is 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, 2014) A general warrant is not valid as it infringes on the constitutional mandate requiring a particular description of the things to be seized. (Sec. 2, Art. III, 1987 Constitution) TEST TO DETERMINE PARTICULARITY 1. Whether the description therein is as specific as the circumstances will ordinarily allow;

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2. 3.

Whether the description expresses a conclusion of fact which the warrant officer may be guided in making the search and seizure; Whether the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.

The executing officer’s prior knowledge as to the place intended in the search warrant is relevant. (Yao, Sr. v. People, 2007) TIME OF MAKING SEARCH General Rule: A search warrant must be served in the day time. Exception: A search may be made at any time of the day or night when it is positively asserted in the affidavit that the property is on the person or in the place ordered to be searched. (Alvares v. CFI of Tayabas, 1937) DURATION OF THE VALIDITY OF A SEARCH WARRANT A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. (Sec. 10, Rule 126) A search warrant cannot be used every day of said period and once articles have already been seized under the warrant, it cannot be used again for another search and seizure, except when the search conducted on one day was interrupted, in which case the same may be continued under the same warrant the following day if not beyond the ten (10) day period. (Uy Kheytin v. Villareal, 1920) MANNER OF MAKING SEARCH General Rule: The search shall be made in the presence of the lawful occupant of the house, room or any other premises, or any member of the lawful occupant’s family. Exception: In their absence, the search shall be made in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. The officer seizing the property must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two (2) witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (Sec. 11, Rule 126) The officer may break open any outer or inner door or window of a house or any part of a house or anything therein, if: 1. The officer gives notice of his purpose and authority; 2. He is refused admittance to the place of directed search despite notice; 3. The purpose is to execute the warrant or to liberate himself or any person lawfully aiding him when unlawfully detained. (Sec. 7, Rule 126) A public officer or employee who exceeds his authority or uses unnecessary severity in executing the warrant is liable under Art. 129 of the RPC (search warrants

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maliciously obtained and abuse in the service of those legally obtained). PERSONAL PROPERTY TO BE SEIZED The property subject of a search warrant is personal property and not real property. A search warrant may be issued for the search and seizure of the following: 1. Personal property subject of the offense; 2. Personal property stolen or embezzled and other proceeds, or fruits of the offense; or 3. Personal property used or intended to be used as a means of committing an offense. (Sec. 3, Rule 126) The law does not require that the property to be seized should be owned by the person against whom the search warrant is directed. Ownership is of no consequence, it being sufficient that the person against whom the warrant is directed has control and possession of the property sough to be seized. (Yao, Sr. v. People, 2007) EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT General Rule: The procurement of a search warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual; otherwise, such search and seizure becomes unreasonable. Exceptions: In times of war within the area of military operation; 1. Warrantless search incidental to a lawful arrest; 2. Search of evidence in plain view (plain view doctrine); 3. Search of a moving vehicle (Carroll doctrine); 4. Consented warrantless search; 5. Customs search; 6. Stop and frisk (Terry searches); 7. Exigent and emergency circumstances; 8. Search of vessels and aircraft; and 9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations. (People v. Vasquez, 2014) In the abovementioned exception, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstance involved. (Valeroso v. CA, 2009) SEARCH INCIDENTAL TO A LAWFUL ARREST Requisites: 1. The arrest must be lawful; 2. The search and seizure must precede a valid arrest; and 3. The search must be within the permissible area; The search-incidental-to-a-lawful-arrest exception applies when a person who is lawfully 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 constitute proof in the commission of an offense.

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There must be a valid search and seizure pursuant to an equally valid arrest, which must precede the search. For this purpose, the law requires that there be first a lawful arrest before a search can be made – the process cannot be reversed. (Omar v. People, 2015) The purpose of this rule is to protect the law enforcers from injury that may be inflicted on them by a person they have lawfully arrested and to prevent evidence being destroyed by the arrestee. (People v. Calantiao, 2014) A motorist flagged down by a policeman for not wearing a helmet is not deemed arrested since he was only given a traffic citation and the penalty for the ordinance is only a fine. Hence the subsequent search of the motorcyclist was illegal and the items seized were inadmissible in evidence. (Luz v. People, 2012) In a buy-bust operation conducted to entrap a drug pusher, law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants. (People v. Musa, 1993) A search and seizure incidental to a lawful arrest is not limited to things related to the reason for the arrest. If, in the course of the search, evidence is found constituting proof of another offense, the tenor of the rule, as stated, does not prevent the seizure of the evidence. The warrantless search must be made either on the person of the person arrested or within the permissible area within the latter’s reach, or within the area of his immediate control. (Valeroso v. CA, 2009) PLAIN VIEW DOCTRINE Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. Requisites: 1. The law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; 2. The discovery of the evidence in plain view is inadvertent; and 3. It is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. (Abelita III v. Doria, 2009) The requirement of inadvertence means that the officer must not have known in advance of the location of the evidence and discovery is not anticipated. (United Laboratories v. Isip, 2005) The plain view doctrine does not apply where the police officers did not just accidentally discover the evidence but actually searched for it. (Valeroso v. CA, 2009) “Plain view” justifies mere seizure of evidence without further search. (People v. Aruta, 1998)

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An object is in plain view if it is plainly exposed to sight. People v. Nuevas, 2007) To be immediately apparent, the rule does not require an unduly high degree of certainty as to the incriminating character of the evidence. It requires merely that the seizure be presumptively reasonable assuming that there is probable cause to associate the property with criminal activity; that a nexus exists between a viewed object and criminal activity. (United Laboratories v. Isip, 2005) The plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. (Valeroso v. CA, 2009) SEARCH OF MOVING VEHICLES Warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (People v. Tuazon, 2007) Peace officers are limited only to routine checks where the examination of a vehicle is limited to visual inspection. When a vehicle is stopped and subject to extensive search, such would be permissible only if the officers made it upon probable cause. (People v. Libnao, 2003) Checkpoints are not illegal per se. Under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. (Valmonte v. De Villa, 1990) Searches conducted in checkpoints are valid for as long as they are warranted by exigencies of public order and are conducted in a way least intrusive to motorists. (People v. Vinecario, 2004) CONSENTED WARRANTLESS SEARCH Requisites: 1. The right against obtrusive searches must exist; 2. The person involved had knowledge of the existence of such right; and 3. The said person had an actual intention to relinquish the right. (People v. Nuevas, 2007) Consent to a search 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, 2007) STOP AND FRISK A valid “stop” by an officer requires that he has a reasonable and articulable belief that criminal activity has happened or is about to happen. The “frisk” made after the “stop” must be done because of a reasonable belief that the person stopped is in possession of a weapon that will pose a danger to the officer and others. It must be a mere pat down outside

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the person’s outer garment and not unreasonably intrusive. OTHER SEARCHES A canine/dog sniff test by a police dog specially trained to detect the presence of drugs is not considered a “search” as it is intended to reveal only the presence or absence of drugs and, thus, a warrant is generally not required. (U.S. v. Place, 1983) The use of a thermal imaging device or a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, is considered a “search” and is presumptively unreasonable without a warrant. (Kyllo v. U.S., 2001) DUTIES AND LIABILITIES OF OFFICERS 1. The officer making the search shall: a. Deliver the property seized to the judge who issued the warrant; and b. Together with the delivery of the property, also deliver a duly verified inventory under oath of the property seized. (Sec. 12(a), Rule 126) 2. The judge issuing the search warrant shall a. Ascertain if the return has been made within ten (10) days after the issuance thereof; b. If no return has been made, 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, ascertain whether Sec. 11, Rule 126 of the Rules of Court (giving of a receipt for the property seized) was complied with and require that the property be delivered to him. He must also ascertain that Sec. 12(a), Rule 126 of the Rules of Court (delivery of the property seized and true inventory) has been complied with. (Sec. 12(b), Rule 126) 3. The custodian of the log book on search warrants shall: a. File and keep the return on the search warrant in the log book on search warrants; and b. Enter therein the date of the return, the result, and other actions of the judge. (Sec. 12, Rule 126) A violation of the officer or of the custodian to comply with the above rules shall constitute contempt of court. (Sec. 12, Rule 126) If the judge fails to require the officers executing the warrant to make an accurate and complete inventory of the things seized and to submit the same to him, he shall be considered guilty of gross ignorance of the law. (Betoy v. Coliflores, 2006) EFFECT OF AN ILLEGAL SEARCH AND SEIZURE

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If the evidence is obtained through an unlawful search, the seized item is inadmissible in evidence against the accused. (Villanueva v. People, 2014) The illegality of a search and seizure occurs, not only from the failure to obtain a warrant when required, but also from the failure to comply with the procedures for obtaining a warrant and in the execution of the same. Such failure will result in the application of the exclusionary rule. The exclusionary rule prevents, upon motion or objection, the admission of evidence illegally obtained. The evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being a fruit of the poisonous tree, thus must be excluded as evidence. Violations of the Miranda rights render the evidence obtained inadmissible. NOTE: Waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. Officers of certain corporations, from which documents, papers and things were seized by means of search warrants, have no cause of action to assail the legality of the seizures because said corporations have personalities distinct and separate from those of said officers. The legality of the search warrant should be addressed to the court issuing the search warrant and not to any other court to foster judicial stability. (Pagkalinawan v. Gomez, 1967) REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE 1. Resist the search; 2. File a criminal action against the public officer or employee as he is criminally liable under Art. 129 of the RPC (search warrants maliciously obtained and abuse in the service of those legally obtained); 3. File a motion to quash the search warrant; 4. File a motion to suppress the evidence; 5. File a motion to return the seized items; or 6. File for replevin, if the items are legally possessed.

O. PROVISIONAL REMEDIES IN CRIMINAL CASES (RULE 127) 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) NOTE: As a rule, when a criminal action is instituted, the civil action for the recovery of the civil liability arising from the offense charged shall be deemed instituted with the criminal action, except when there is a reservation, waiver, or filing of a separate civil action. Since there is a civil action that goes with the criminal action, provisional remedies may be availed of in connection with the civil action.

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To avail of a provisional remedy in a criminal action: 1. It must be one with a corresponding civil liability; 2. The civil action must be one arising from the offense charged; and 3. The civil action must be instituted in the said criminal action. WHEN NOT AVAILABLE 1. The offended party has waived the civil claim; 2. The offended party has reserved the civil claim; 3. The offended party has already instituted a separate civil action; or 4. The criminal action carries with it no civil liability. If the civil action has been waived, reserved or instituted separately, the provisional remedy should be applied for in the separate civil action instituted. KINDS OF PROVISIONAL REMEDIES 1. Attachment 2. Preliminary injunction 3. Receivership 4. Replevin 5. Support pendent lite PRELIMINARY ATTACHMENT Preliminary attachment is available when the civil action is properly instituted in the criminal action and: 1. When the accused is about to abscond from the Philippines; 2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. When the accused has concealed, removed, or disposed of his property, or is about to do so; and 4. When the accused resides outside the Philippines. (Sec. 2, Rule 127, Rules of Court) When the preliminary attachment is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused, there is no need to show that the accused has concealed, removed, or disposed of his property or is about to do so. Instead, it must be shown that: 1. The criminal case is founded upon a claim that money or property was embezzled, fraudulently misapplied or converted to the use of the accused; and 2. The accused occupies any of the positions mentioned in Sec. 2, Rule 127 of the Rules of Court or that he committed a willful violation of duty. (Sec. 2, Rule 127)

P. REVISED GUIDELINES ON CONTINUOUS TRIAL (A.M. NO. 1506-10-SC)

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OBJECTIVES •

•

•

To protect and advance the constitutional right of persons to a speedy disposition of their criminal cases To reinforce and to give teeth to the existing rules on criminal procedure and other special rules prescribing periods for court action and those that promote speedy disposition of criminal cases To introduce innovations and best practices for the benefit of the parties

HEARING DAYS AND CALENDAR CALL Trial shall be held from Monday to Thursday, and courts shall call the cases at exactly 8:30am and 2:00pm. Hearings on motions, arraignment and pre-trial, and promulgation of decisions shall be held on the mornings of Fridays MOTION FOR INHIBITION The motion shall be resolved immediately or within two calendar days from filing. PROHIBITED MOTIONS • •

•

• • • •

Motion for judicial determination of probable cause Motion for preliminary investigation filed beyond the 5 day reglementary period in inquest proceedings or when preliminary investigation is required or allowede in inquest proceedings but 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 o if motion is filed without prior leave of court o when PI is not required under Sec. 8, Rule 112 o when the regular preliminary investigation is required and has actually been conducted, and the grounds relied upon in the motion are not meritorious, such as issues of credibility, admissibility of evidence, innocence of the accused, or lack of due process when the accused was actually notified. Motion to quash information when ground is not one of those stated in Sec. 3, Rule 117 Motion for bill of particulars when it does not conform with the Rules Motion to suspend arraignment based on grounds not stated under Sec. 11, Rule 116 Motion to suspend criminal action on the ground of prejudicial question, when no civil case has been filed

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MOTION FOR POSTPONEMENT GR: Prohibited Exception: Acts of God, force majure, physical inability of the witness to appear or testify Moving party will still be warned that presentation of evidence must still be finished during agreed upon dates. ARRAIGNMENT AND PRE-TRIAL Once the court gains jurisdiction over the person of the accused, arraignment and pre-trial shall be set within 10 calendar days from the date of the court’s receipt of the case for a detained accused, and 30 calendar days over a non-detained accused FLOW Regular Rules • •

•

Arraignment/Pretrial (up to 30 days) Presentation of the Prosecution’s and Accused’s Evidence (up to 180 days from Pretrial) Promulgation ( 90 days from submission of case for decision)

Drug Cases • •

Trial (To be finished not later than 60 days from filing of the information) Decision ( 15 days from submission of case for resolution)

Environmental Cases • • • •

Arraignment/Pretrial (up to 30 days) Trial (up to 3 months from Pretrial) Memo (up to 30 days) Decision (within 60 days from last day to file memoranda)

Intellectual Property Cases • • • •

Arraignment/Pretrial (up to 30 days) Presentation of the Prosecution’s and Accused’s Evidence (60 days for each party) Memo (up to 30 days) Decision (within 60 days from last day to file memoranda)

Q. THE RULE ON CYBERCRIME WARRANTS (A.M. NO. 17-11-03-SC) NATURE The rule supplements the existing rules of Criminal Procedure. WHERE TO FILE APPLICATION FOR WARRANT For violations of Section 4 and 5 of RA 10175: filed before the law enforcement authorities before any of the designated cybercrime courts of the province or the city where the offense or any of its elements has been/is being/will be committed, or where any part of the computer system used is situated or where any of the damage caused to a natural or juridical person took place (Note: Cybercrime courts in QC, Manila, Makati, Pasig, Cebu, Iloilo, Davao City, CDO have special authority to act on applications and issue warrants which are enforceable nationwide and outside the Philippines) For violations of Section 6 of RA 10175: Within the regular or special RTCs of the territorial jurisdiction. EFFECTIVE PERIOD: 10 days, extendable by another 10 days PRESERVATION OF COMPUTER DATA The integrity of the traffic data and subscriber’s information shall be kept, retained, and preserved for a minimum period of 6 months from the date of the transaction. Content data shall be saved for 6 months from the date of receipt of the order from law enforcement authorities requiring preservation. WARRANT TO DISCLOSE COMPUTER DATA (WDCD) A WDCD 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 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/its possession or control. If the judge finds probable cause, he shall issue a WDCD.

BAIL

WARRANT TO INTERCEPT COMPUTER DATA (WICD)

Shall be heard and resolved within a non-extendible period of 30 calendar days from first hearing (20 for drug cases), without need for submission of memoranda and oral arguments

A WICD 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 following activities: (a) listening to, (b) recording, (c) monitoring, or (d) surveillance of the content of communications, including procuring of the content of computer data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or

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tapping devices, at the communication is occurring.

same

time

that

the

WARRANT TO SEARCH, SEIZE COMPUTER DATA (WSSECD)

AND

EXAMINE

A Warrant to Search, Seize and Examine Computer Data (WSSECD) 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. WARRANT TO EXAMINE COMPUTER DATA (WECD) Upon acquiring possession of a computer device or computer system via a lawful warrantless arrest, or by any other lawful method, law enforcement authorities shall first apply for a warrant before searching the said computer device or computer system for the purpose of obtaining for forensic examination the computer data contained therein. The warrant therefor shall be denominated as a Warrant to Examine Computer Data (WECD). DEPOSIT AND CUSTODY OF SEIZED COMPUTER DATA

1.

2. 3. 4.

5.

6.

7.

Upon filing for a return for any of the warrants, all computer data thereof shall be simultaneously deposited in a sealed package with the same court that issued the warrant. It shall be accompanied by a complete and verified inventory of all the other items seized in relation thereto, and by the affidavit of the duly authorized law enforcement officer containing: The date and time of the disclosure, interception, search, seizure, and/or examination of the computer data, as the case may be. If the examiner or analyst has recorded his/her examination, the recording shall also be deposited with the court in a sealed package and stated in the affidavit; The particulars of the subject computer data, including its hash value; The manner by which the computer data was obtained; Detailed identification of all items seized in relation to the subject computer data, including the computer device containing such data and/or other parts of the computer system seized, indicating the name, make, brand, serial numbers, or any other mode of identification, if available; The names and positions of the law enforcement authorities who had access to the computer data from the time of its seizure until the termination of the examination but prior to depositing it with the court, and the names of officers who will be delivering the seized items to the court; The name of the law enforcement officer who may be allowed access to the deposited data. When the said officer dies, resigns of severs tie with the office, his/her successor may, upon motion, be granted access to the deposit; and A certification that no duplicates or copies of the whole or any part thereof have been made, or if made, all such duplicates or copies are included in the sealed package deposited, except for the copy retained by law enforcement authorities

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A. GENERAL CONCEPTS Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (Sec. 1, Rule 128)

PROOF vs. EVIDENCE

EVIDENCE

Proof Merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence (29 Am Jur 2d, Evidence, S2) The effect or result of evidence

Evidence the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact (Sec.1, Rule 128, RoC) Medium of proof

BURDEN OF PROOF vs. BURDEN OF EVIDENCE Burden of Proof or “onus probandi”, defined: Obligation imposed upon a party who alleges the existence of facts necessary for the prosecution of his action or defense to establish the same by the requisite quantum of evidence. Proof - The establishment of a requisite degree of belief in the mind of the trier of fact as to the fact in issue. Burden of Proof Does not shift and remains throughout the entire case exactly where the original pleadings placed it.

Generally determined by the pleadings filed by the party.

Burden of Evidence Shifts from party to party depending upon the exigencies of the case in the course of the trial Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged. (ex. Presumptions, judicial notice)

Upon Whom Burden of Proof Rests: Civil Cases

On the party who would be defeated if no evidence were given on either side.

Plaintiff

Defendant

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Has the burden of proof to show the truth of his allegations if the defendant raises a negative defense. (w/ respect to his complaint) Has the burden of proof if

Criminal Cases The burden of proof is always with the prosecution Note: It is required that courts determine first if the evidence of the

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he raises an affirmative defense on the complaint of the plaintiff. (w/ respect to his counterclaim)

Cross Claimant

w/ respect to his cross claim

prosecution has at least shown a prima facie case before considering the evidence of the defense. *If established – then the burden is shifted upon the accused to prove otherwise

Where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. (People v. Lagmay)

B. ADMISSIBILITY Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.

1. 2.

REQUISITES

Evidence is relevant; and Evidence is competent or not excluded by the rules

RELEVANT, MATERIAL, AND COMPETENT EVIDENCE Relevant - evidence having any value in reason as tending to prove any matter provable in an action.

Burden of Evidence - The logical necessity on a party during a particular time of the trial to create a prima facie case in its favor or to destroy that created against him by presenting evidence.

Test: The logical relation of the evidentiary fact to the fact in issue, whether the former tends to establish the probability or improbability of the latter or induces belief in its existence or non-existence

In BOTH civil and criminal cases: The burden of evidence lies w/ the party who asserts an affirmative allegation.

Material- evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings.

Civil Cases Plaintiff Must prove the affirmative allegations in his complaint Defendant In his counterclaim and in his affirmative defenses

Criminal Cases Prosection Must prove the its affirmative allegations in the indictments (elements of the crime and the attending circumstances) Defense As to the justifying, exempting, mitigating, and absolutory circumstances

FACTUM PROBANS AND FACTUM PROBANDUM Factum Probans Factum Probandum The evidentiary fact or the Ultimate fact or the fact fact by which the factum sought to be established probandum is to be established. Refers to the materials Refers to the proposition; which established the Elements of the cause of proposition action Ex. If P claims to have been injured by the negligence of D who denies having been negligent. Factum probandum: The negligence of D and the causal connection between such negligence, and the injuries of P taken as a whole Factum probans: The totality of the evidence toprove the liability

EQUIPOSE RULE

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Test: 1. 2. 3.

W/N the fact it intends to prove is an issue or not. W/N a fact is in issue: Determined by substantive law, pleadings, pre-trial order and by admissions or confessions on file. Evidence may be relevant BUT may be immaterial.

Competent- one that is not excluded by the Rules, statutes or the Constitution. (Sec 3, Rule 128) RELEVANCE OF EVIDENCE AND COLLATERAL MATTERS Relevance is a matter of relationship between the evidence and the fact in issue. (Riano) “There is no precise and universal test of relevancy provided by law. However, the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience” (People v. Galleno, 1998) COLLATERAL MATTERS A matter is collateral when it is on a “parallel or diverging line,” merely “additional” or “auxiliary” (Black’s Law Dictionary, 5th Ed., p. 237) GENERAL RULE: Collateral Matters are not allowed EXCEPTION: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128) TYPES OF ADMISSIBILITY 1. Multiple admissibility Admissible for 2 or more purposes May mean either:

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a. b.

2.

3.

The evidence is admissible for several purposes; or An evidence is not admissible for one purpose but may be admitted for a different purpose

Conditional admissibility Admissibility of evidence, where the evidence at the time of its offer appears to be immaterial or irrelevant, subject to the condition that relevancy would later on be shown. Qualification: No bad faith on the part of the proponent Curative admissibility Admissibility of an inadmissible evidence to answer the opposing party’s previous introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence. The right of the party to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party.

DIRECT AND CIRCUMSTANTIAL EVIDENCE CIRCUMSTANTIAL DIRECT EVIDENCE EVIDENCE

Proves a fact without a need to make an inference from another fact

Evidence which indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established (People v. Matito, GR No. 144405, February 24, 2004)

POSITIVE AND NEGATIVE EVIDENCE POSITIVE EVIDENCE

NEGATIVE EVIDENCE

When witness affirms in the stand that a certain state of facts does exist or that a certain event happened

When the witness states that an event did not occur or that the state of facts alleged to exist does not actually exist

Presence of something

Absence of something

Positive evidence is, as a general rule, more credible than negative evidence. The reason for this rule is that the witness who testifies to a negative may have forgotten what actually occurred, while it is impossible to remember what never existed. (Gomez v. Gomez- Samson, GR No. 156284, 2007)

COMPETENCE AND CREDIBLE EVIDENCE COMPETENCY Not excluded by the Rules, statutes or the Constitution

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CREDIBILITY Worthiness belief

of

EXCLUSIONARY RULES Evidence obtained and confiscated on the occasion of unreasonable searches and seizures are deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding. (Ambre v. People) Exception: Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures; and (6) stop and frisk situations. (People v. Molina)

JUDICIAL NOTICE AND JUDICIAL ADMISSIONS (rule 129) WHAT NEED NOT BE PROVED: 1. Facts which a court shall or may take judicial notice. (Secs. 1 and 2, Rule 129) 2. Judicial admissions. (Sec. 4, Rule 129) 3. Facts which may be presumed from proven facts. JUDICIAL NOTICE The cognizance of certain facts which judges may properly take and act on without proof because they are already known to them (People v. Tundag, 2000) Judicial Notice is based on convenience and expediency. It relieves the parties from the necessity of introducing evidence to prove the fact noticed. The taking of judicial notice is a matter of expediency and convenience for it fulfills the purpose that the evidence is intended to achieve, and in this sense, it is equivalent to proof. (Land Bank of the Philippines vs. Yatco Agricultural Enterprises, 2014) Judicial Notice relieves the parties from the necessity of introducing evidence to prove the fact noticed (Francisco, Evidence, 1996) WHEN COURT MAY TAKE JUDICIAL NOTICE 1. During trial; 2. After trial and before judgment; 3. On Appeal WHEN JUDICIAL NOTICE MANDATORY 1. Existence and territorial extent of states; 2. Their political history, forms of government and symbols of nationality; 3. The law of nations; 4. The admiralty and maritime courts of the world and their seals;

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5. 6. 7. 8. 9.

The political constitution and history of the Philippines; the official acts of the legislative, executive and judicial departments of the Philippines The laws of nature; The measure of time; and The geographical divisions.

Note: Enumeration on Mandatory Judicial Notice is EXCLUSIVE RULE ON JUDICIAL NOTICE OF DECISIONS OF COURTS GENERAL RULE: ALL courts are required to take judicial notice of the decisions of the Supreme Court. Lower courts are to take JN of decisions of higher courts (ex. CA) BUT NOT of the decisions of coordinate trial courts NOR even of a decision or the facts involved in another case tried by the same court EXCEPTION: Parties introduce the same in evidence. (The court, as a matter of convenience, decides to do so.) RULE ON ADJUDICATION OF CASES PENDING GENERAL RULE: Courts are not authorized to take judicial notice in the adjudication of cases pending before them, of the contents of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge. (Prieto v. Arroyo, Jr., 1965) EXCEPTION: In the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, 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 when 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. It is clear, though, that this exception is applicable only when, "in the absence of objection," "with the knowledge of the opposing party," or "at the request or with the consent of the parties," the case is clearly referred to or "the original or part of the records of the case are actually withdrawn from the archives" and "admitted as part of the record of the case then pending." (Tabuena vs. CA, 1991) WHEN JUDICIAL NOTICE DISCRETIONARY Courts may take judicial notice on: 1. Matters which are of public knowledge, 2. Matters which are capable of unquestionable demonstration, or 3. Matters which ought to be known to judges because of their judicial functions For the court to take Judicial Notice, three material requisites should be present: 1. The matter must be one of common and general

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2. 3.

knowledge; It must be well and authoritatively settled and not doubtful or uncertain; It must be known to be within the limits of the jurisdiction of the court. (State Prosecutors v, Muro, 1994)

It is not essential that matters of Judicial Notice be actually known to the judge. The judge may, at his discretion, inform himself in any way which may seem best to him, and act accordingly. JUDICIAL ADMISSIONS An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing palpable mistake or that no such admission was made. (Sec. 4, Rule 129, Rules of Court) ELEMENTS OF JUDICIAL ADMISSIONS 1. Must be made by a party to the case 2. Must be made in the course of the proceedings in the same case 3. No particular form is required, may be oral or written (Riano) JUDICIAL ADMISSIONS MAY BE MADE 1. In the pleadings filed by the parties 2. In the course of the trial either by verbal or written manifestations or stipulations 3. In other stages of the judicial proceeding, as in pre-trial of the case Note: Depositions, written interrogatories, or requests for admission are also considered judicial admissions. TO BE CONSIDERED A JUDICIAL ADMISSION GENERAL RULE: It must be made in the SAME case in which it is offered EXCEPTION: It may be made in another case or another court, provided: 1. It be proved as in the case of any other fact 2. If the judicial admission was made in a judicial proceeding, it is entitled to greater weight. 3. It is pertinent to the issue involved 4. There must be no objection EXCEPTION TO THE EXCEPTION: 1. The said admissions were made only for purposes of the first case as in the rule on implied admissions and their effects under Rule 26 2. The same were withdrawn with the permission of the court therein 3. The court deems it proper to relieve the party therefrom. EFFECT OF JUDICIAL ADMISSIONS Judicial Admissions do not require proof. (Sec. 4, Rule 129) HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED GENERAL RULE: Judicial Admissions cannot be contradicted by the admitter who is the party himself.

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EXCEPTION: May be contradicted when: 1. Such is made through palpable mistake; 2. No such admission was made; or 3. In the case of a pre-trial admission in a civil case, to prevent manifest injustice (Sec 7, Rule 118) 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) JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE GENERAL RULE: Foreign laws do not prove themselves nor can a court take judicial notice of them. Like any other fact, they must be alleged and proved. (GarciaRecio v. Garcia, 2001) EXCEPTION: When foreign laws may be the subject of judicial notice 1. When the local court is evidently familiar with the foreign law. 2. When the foreign law refers to the law of nations. (Sec. 1, Rule 129) 3. When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treatise. (Sec. 46, Rule 130) 4. When the foreign statute is accepted by the Philippine government. (Republic v. Guanzon, 61 SCRA 360) 5. When a foreign judgment containing foreign law is recognized for enforcement. (Sec. 48, Rule 39) 6. If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308) HOW WRITTEN FOREIGN LAW MAY BE PROVED Requirements in Sec 24 and 25 of rule 132 must be complied with: 1. By an official publication 2. By a duly attested and authenticated copy thereof. Philippine courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact. In the absence of such proof, the foreign law is presumed to be the same as Philippine law. (Yao Kee v. Sy-Gonzales, 1988) DOCTRINE OF PROCESSUAL PRESUMPTION Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. (Del Socorro v. Van Wil Sem, 2014) HOW UNWRITTEN FOREIGN LAW MAY BE PROVED Rule 130, Sec 46: A published treatise, periodical or pamphlet on a subject of such law or a testimony of a written expert.

LAW OF NATIONS

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Evidence

Article II, The 1987 Philippine Constitution SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. The Philippines…”adopts the generally accepted principles of international law as part of the law of the land..” (Sec. 2, Art. II, 1987 Constitution) MUNICIPAL ORDINANCES GENERAL RULE: Courts of justice are required to take Judicial Notice of the laws EXCEPTION: In case of ORDINANCES, the rule is different 1. MTCs: Required to take JN of the ordinances of the municipality or city wherein they sit. 2. RTC however, they must take such JN ONLY when: a. Required to do so by statute (ex. city charter); and b. In a case on appeal before them and wherein the inferior court took JN of an ordinance involved in said case. (only to determine the propriety of taking JN) c. Appellate courts may also take JN of municipal and city ordinances not only where the lower courts took JN BEC these are facts capable of unquestionable demonstration. d. For the same reason, Courts may take judicial notice of administrative regulations.

C. OBJECT (REAL) EVIDENCE (RULE 130, A) Nature of Object Evidence Object evidence includes any article or object which may be known or perceived by the use of any of the senses of: hearing (auditory), touch (tactile), taste (gustatory) or smell (olfactory), and sight It may include: • Examination of the anatomy of a person or any substance taken therefrom • Conducting tests, demonstration or experiments • Examination of representative portrayals of the object in question provided the same are properly authenticated (ex. maps, diagrams, sketches, pictures, audio-visual records) • Documents – only if the same are presented for the following purposes: 1. To prove the existence or condition or the nature of the handwritings thereon; 2. To determine the age of the paper used or the blemishes or alterations thereon Note: Such real evidence may be amplified by interpretations afforded by testimonial evidence especially by experts (x-ray interpreted by doctors)

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DOCUMENTS ARE CONSIDERED: 1. Object Evidence – if their Purpose is to prove their existence or condition, or the nature of the handwritings thereon or to determine the age of the paper used, or the blemishes or alterations thereon. 2. Documentary Evidence - if their purpose is to establish the contents or tenor thereof. REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE: 1. Must be relevant 2. Must be Authenticated 3. Must be made by competent witness 4. Object must be formally offered in evidence NOTE: Authentication consists of showing that the object is the object that is involved in the underlying event. CATEGORIES OF OBJECT EVIDENCE As to Presentation in Court: 1. Exhibition or Production - The exhibition or production of object inside or outside the courtroom; 2. View of an Object or Scene - the inspection of the object outside the courtroom 3. Experiments - making of an experiment As to Authentication of an Object: 1. Unique Objects – readily identifiable; objects with unique marks 2. Objects made Unique - made readily identifiable; objects which acquired unique characteristics 3. Non-Unique Objects – not readily identifiable; objects with no identifying marks and cannot be marked DEMONSTRATIVE EVIDENCE It is a tangible object that represents or illustrates a matter of importance in the litigation (i.e. maps, diagrams, summaries and other materials created especially for the litigation) To be admissible, it must show that the object fairly represents or illustrates what is alleged to illustrate. REQUISITES FOR OCULAR INSPECTION OR VIEW OF AN OBJECT OR SCENE: 1. Object is relevant 2. Party cannot bring the object in the courtroom (ex. Immovable or inconvenient to remove) A view or Ocular Inspection conducted by the judge without notice to or the presence of the parties is invalid since an OI is part of the trial. Whether or not an Ocular Inspection is to be made lies in the discretion of the court. (Remedial Law Compendium Vol. II, Regalado)

D. DOCUMENTARY EVIDENCE (RULE 130, B)

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DEFINITION Documents as 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) CATEGORIES OF DOCUMENTS 1. Writings; or 2. Any material containing letters, words, numbers, figures, symbols DOCUMENT A deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. DOCUMENTARY EVIDENCE That which is furnished by written inscriptions and documents of all kinds.

instruments,

REQUISITES FOR ADMISSIBILITY OF DOCUMENTARY EVIDENCE: 1. The document must be relevant; 2. The evidence must be authenticated; 3. The document must be authenticated by a competent witness; and 4. The document must be formally offered in evidence.

BEST EVIDENCE RULE The rule stipulates that in proving the terms of a written document the original of the document must be produced in court. (Heirs of Prodon v. Heirs of Alvarez, 2013) PURPOSE OF THE BEST EVIDENCE RULE To prevent fraud, perjury; and to exclude uncertainties in the contents of a document WHEN APPLICABLE GENERAL RULE: The rule excludes any evidence other than the original writing to prove the contents thereof (Rule 130, Sec. 3) NOTE: Best Evidence Rule is applied to Documentary Evidence ONLY (where the contents of a writing is the subject of judicial inquiry; best evidence is the original writing itself). It operates as a rule of exclusion. EXCEPTIONS: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 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 sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the

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custody of a public officer or is recorded in a public office. Effect: The non-production of the original document gives rise to the presumption of suppression of evidence. (Sec 3, Rule 131) MEANING OF ORIGINAL OF DOCUMENT It is one the contents of which are the subject of inquiry. WHEN “OTHER COPIES OF A DOCUMENT” ARE CONSIDERED ORIGINALS (SEC. 4) 1. It includes regular entries in journals and ledgers. 2. A signed carbon copy executed at the same time as the original is known as a “duplicate original” and may be introduced w/o the original RULES ON CARBON COPIES CONSIDERED AS ORIGINALS Documents prepared in several copies through the use of carbon sheets are considered originals, PROVIDED that the writing of a contract upon the outside sheet, including the signature of the party sought to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the SAME stroke of the pen Even if the signature was made through separate acts or separate occasions, ALL the CARBON COPIES are considered originals RULES ON TELEGRAMS AND CABLES Whether or not the dispatch sent or the dispatch received is the best evidence of the message (depends on the issue) 1. IF the issue is the contents of the telegrams as received by the addressee, original dispatch received is the best evidence as sent by the sender the original is the message delivered 2. IF the issue is the inaccuracy of the transmission BOTH the sent and received dispatch are originals.

SECONDARY EVIDENCE 1.

WHEN ORIGINAL IS UNAVAILABLE.

2.

WHEN ORIGINAL IS WITH THE ADVERSE PARTY

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE WHEN THE ORIGINAL IS WITH THE ADVERSE PARTY: 1. The original exists; 2. The document is under the custody or control of the adverse party; 3. Proponent of the Secondary Evidence has given the adverse party reasonable notice to produce the original document; and 4. Adverse party failed to produce the original document despite reasonable notice. 3.

WHEN ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS: 1. The original consists of numerous accounts or other documents; 2. They cannot be examined in court without great loss of time; and 3. The fact sought to be established from them is only the general result of the whole. (Sec.3(c), Rule 130) Voluminous records must, however, be made accessible to the adverse party so that the correctness of the summary of the voluminous records may be tested on cross examination. (Compania Maritima v. Allied Free Workers Union, 77 SCRA 24) 4.

WHEN ORIGINAL IS A PUBLIC RECORD

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE WHEN THE ORIGINAL IS A PUBLIC RECORD: 1. Original is in the custody of a public officer or is recorded in a public office; 2. Prove contents by: a. Certified True Copy issued by the public officer in custody thereof; or b. Official Publication

PAROL EVIDENCE RULE

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE IN CASE OF LOSS OR DESTRUCTION: 1. Prove the existence or due execution of the original; 2. Show cause for its unavailability; and 3. Show the absence of bad faith on the part of the offeror to which the unavailability of the original can be attributed.

Parol Evidence – Oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence given by witnesses in court. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence, or evidence aliunde. (Black’s Law Dictionary, 5th Ed. , pp. 1005-1006)

NOTE: Proof of loss or destruction alone is not sufficient foundation. The due execution besides the loss has to be shown. Also, the offeror must show that exerted efforts were made to locate the original; that the search was thorough and diligent

REQUISITES FOR APPLICABILITY 1. A valid contract; 2. Terms of the agreement must be reduced to writing; 3. Dispute is between parties and their successors-in-interest; 4. Grounds for applicability must be put in issue in

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the pleadings; and There is a dispute as to the terms of the agreement.

WHEN PAROL EVIDENCE CAN BE INTRODUCED GENERAL RULE: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. EXCEPTION: When a party puts in issue in his pleading: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. The failure of the written agreement to express the true intent and agreement of the parties thereto; 3. The validity of the written agreement; or 4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. EXCEPTION TO THE EXCEPTION: Parol Evidence may still be admitted even if the required matters are not put in issue by the pleadings: 1. If such facts are invoked in his answer (since it also puts it in issue) 2. When parol evidence is NOT OBJECTED to (waiver of right to object inadmissibility) Note: The Exceptions above are also the Grounds for presenting Parol Evidence INTEGRATED AGREEMENTS Parol Evidence Rule applies only to integrated (finalized) agreements, intended by both parties as the final and exclusive written memorial of their agreement COLLATERAL ORAL AGREEMENTS Parol Evidence Rule may also apply to collateral oral agreements: 1. When the CA is not inconsistent with the terms of the written contract; 2. When the CA has not been integrated in and is independent of the written contract as where it is suppletory to the original contract; 3. When the CA is subsequent to or novatory of the written contract; 4. When the CA constitutes a condition precedent which determines whether the written contract may become operative or effective. WHEN PAROL EVIDENCE NOT APPLICABLE 1. When at least 1 party to the suit is not a party or privy to the written instrument in question and does not base a claim or assert a right originating in the instrument. 2. A stranger may introduce extrinsic evidence against the written agreement. PAROL EVIDENCE RULE V. BEST EVIDENCE RULE

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PAROLE EVIDENCE RULE

BEST EVIDENCE RULE

Presupposes that the original document is available in court

Contemplates a situation where the original writing is not available and/or there is a dispute as to w/n the said writing is the original

Written agreements only

Any document

Prohibits the varying of the terms of the written agreement

Prohibits the introduction of secondary evidence regardless of w/n it varies the contents of the original

Applies ONLY to documents which are contractual in nature or “written agreement (EXC. It applies to wills)

Applies to all kinds of writings

Can be invoked ONLY when there is a controversy bet. the parties to the written agreement and their privies or any party directly affected thereby

Can be invoked by ANY party regardless of w/n such party has participated in the writing involved.

Only the contracting parties may challenge the document

May be challenged by anyone

to exclude any evidence that will vary, modify or change contents of the written agreement

Exclude any evidence to prove content

INTERPRETATION OF DOCUMENTS The language of a writing is to be interpreted according to its execution, unless the parties intended otherwise. However, when an instrument consists partly of written words and partly of a printed form, AND the two are inconsistent, the former controls the latter. EXPERTS AND INTERPRETERS TO BE USED IN EXPLAINING CERTAIN WRITINGS WHEN: 1. The characters in which an instrument is written are difficult to be deciphered, or 2. The language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language is admissible to declare the characters or the meaning of the language. OF TWO CONSTRUCTIONS, WHICH PREFERRED When the terms of an agreement have been intended in a different sense by the different parties to it:

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•

•

That sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper; That is to be taken which is the most favorable to the party in whose favor the provision was made.

CONSTRUCTION IN FAVOR OF NATURAL RIGHT When an instrument is equally susceptible of two interpretations, one in favor of natural right AND the other against it, the former is to be adopted. INTERPRETATION ACCORDING TO USAGE An instrument may be construed according to usage, in order to determine its true character.

E. TESTIMONIAL EVIDENCE (RULE 130, C) QUALIFICATIONS OF A WITNESS GENERAL RULE: All persons who can perceive, and in perceiving, can make known their perception to others, may be witnesses. The following shall not be a ground for disqualification: 1. Religious or political belief, 2. interest in the outcome of the case, or 3. conviction of a crime Note: A witness must only possess all the qualifications and none of the disqualifications. (Marcos v. Heirs of Navarro, 2013) EXCEPTIONS: When law provides otherwise, such as: 1. Disqualification by reason of mental capacity or immaturity (Sec. 21, Rule 130) 2. Disqualification by reason of marriage (Sec. 22, Rule 130) 3. Disqualification by reason of death or insanity of the adverse party (Sec. 23, Rule 130) 4. Disqualification on the ground of privileged communication (Sec. 24, Rule 130) The fact that a person is mentally handicapped, alone does not prevent her from giving testimony especially if the testimony was candid, straightforward, and coherent (People v. Baid, 2000) COMPETENCY VERSUS CREDIBILITY OF A WITNESS COMPETENCY OF A WITNESS

CREDIBILITY OF A WITNESS

Matter of law

Has nothing to do with the rules

As regards the qualifications and the capacity of a witness to perceive and make his perception known

Refers to the weight and trustworthiness or reliability of the testimony

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DISQUALIFICATIONS OF A WITNESS 1. By reason of mental capacity or immaturity; 2. By reason of marriage; 3. By reason of death or insanity of the adverse party; and 4. By reason of privileged communications 1.

DISQUALIFICATION BY REASON OF MENTAL CAPACITY OR IMMATURITY

The following cannot be witnesses: 1. Those whose mental condition renders them incapable of intelligently making known their perception to others at the time of their examination; and 2. Children whose mental immaturity renders them incapable of perceiving facts and relating them to others truthfully COMPETENCY OF A CHILD WITNESS Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubts 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. Note: The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (Rule on Examination of a Child Witness) 2.

DISQUALIFICATION BY REASON OF MARRIAGE: RULE ON MARITAL DISQUALIFICATION (SPOUSAL IMMUNITY)

GENERAL RULE: During the marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse EXCEPTIONS: Rule on Disqualification does NOT Apply 1. When the testimony was made outside the marriage 2. In a civil case by one spouse against another 3. In a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants (Sec. 22, Rule 130) REASON: The crime may be considered as having been committed against the spouse and hence, the conjugal harmony sought to be protected no longer exists. LIMITED ONLY TO DIRECT ASCENDANTS AND DESCENDANTS + SPOUSE: 1. When the offense directly attacks or vitally impairs the conjugal relation. (People v. Castañeda, 88 SCRA 562) 2. When the marital relations are so strained, there is no more consideration for applying the said rule. Such as in cases of rape of the child, the crime is tantamount to a crime

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3.

against the wife. (Ordonio v. Daquigan, 62 SCRA 270) When there is imputation of a crime by one spouse against the other

3. 4.

Note: “Direct Ascendants and Descendants” = Parents and Children ONLY NATURE OF PROHIBITION: Absolute disqualification or prohibition against the spouse’s testifying to any fact affecting the other spouse however the fact may have acquired REQUISITES IN ORDER FOR MARITAL DISQUALIFICATION RULE TO APPLY: 1. The marriage is valid and existing at the time of the offer of testimony; and 2. The other spouse is a party to the action. Note: Disqualification applies between the parties is voidable.

where

the

marriage

WHO MAY OBJECT: Only the other spouse who is a party to the case. Objections to the competency of the witness-spouse may also be waived. (Ex. Testimony against a spouse is a waiver of a testimony in rebuttal) RATIONALE FOR HAVING SUCH RULE: Considering the identity of interest between the spouses, there is a consequent danger of committing perjury. Also, the rule is in order to guard marital confidence and to prevent domestic disunion

3.

DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY

SURVIVORSHIP DISQUALIFICATION RULE OR DEAD MAN STATUTE: Constitutes only a partial disqualification: A witness is not completely disqualified BUT is only prohibited from testifying in certain matters specified DISQUALIFICATION ONLY APPLIES TO: A civil case or special proceeding over the estate of a deceased or insane person INCOMPETENCY TO TESTIFY APPLIES: Whether or not the deceased died before or after the commencement of the action against him provided he is dead at the time of the testimony. The material time is when the testimony is sought to be given.

REQUISITES: 1. The witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted; 2. The case is against the executor or administrator or other representative of a person deceased or of unsound mind;

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The case is upon a claim or demand against the estate of such person who is deceased or of unsound mind The testimony to be given is on matter of fact occurring before the death, of such deceased person or before such person became of unsound mind.

THE RULE DOES NOT APPLY: 1. In Land registration cases instituted by the decedent’s representatives (since the oppositors are considered defendants and may therefore testify against the petitioner) 2. In Cadastral cases – since there is no plaintiff or defendant 3. When the testimony is offered to prove a claim less than what is established under a written document or is intended to prove a fraudulent transaction against the deceased Provided, such fraud is first established by evidence aliunde. APPLICATION: To apply the rule, the testimony must be against the estate. WHEN THE DISQUALIFICATION IS WAIVED – WHEN THE DEFENDANT: 1. Does not timely object to the admission of such evidence; 2. Testifies on the prohibited matters or cross examines thereon; or 3. Offers evidence to rebut such prohibited testimony REASON FOR THE RULE: 1. To prevent perjury 2. To protect the estate from fictitious claims 3. To give the parties an equal opportunity to present evidence The object and purpose of this Statute is to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. (Goni v. CA, 144 SCRA 222, 1968) The protection under the Dead Man’s Statute is deemed waived when the counsel cross-examines the party who is claiming against the estate. 4.

DISQUALIFICATION BY REASON PRIVILEGED COMMUNICATION

OF

(a)

HUSBAND AND WIFE (MARITAL PRIVILEGE)

REQUISITES FOR THE DISQUALIFICATION BY REASON OF MARITAL PRIVILEGE TO APPLY: 1. There is a valid marital relation; 2. The privilege is invoked with respect to a confidential communication between the spouses during said marriage;

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3.

The spouse against whom such evidence is being offered has not given his or her consent to such testimony.

Note: Marital Privilege applies to any form of confident disclosure—written or unwritten. The privilege belongs to the communicating spouse, not to the other one. INSTANCES WHEN THE PRIVILEGE CANNOT BE CLAIMED: 1. With respect to communications made prior to the marriage of the spouses 2. With respect to communication not intended to be kept in confidence (ex. dying declaration of a husband to his wife as to who was his assailant since it is intended to be reported) (US v. Antipolo, 37 Phil 726) 3. When the information is overheard by a third party whether he acquired the information legally or not. (A 3rd person is not covered by the prohibition) Provided: There is no collusion between the 3rd person and one of the spouses. 4. In a conspiracy between spouses to commit a crime - since it is not the intention of the law to protect the commission of a crime. 5. When the spouses are living separately and there is an active hostility. But if there is a chance to reconcile, then this privilege will apply; 6. When waived Note: Any information received during the marriage is presumed to be confidential. Privileged marital communication extends even after death or divorce of spouses. Waiving Sec 22 does not prevent the spouse from invoking Sec 24 and vice versa. So even if the information is not confidential, the spouse may still invoke Sec 22., which is an absolute disqualification. This should NOT Disqualification”

be

Marital Disqualification (Sec. 22, Rule 130) Prohibits testimony source

adverse regardless of

Applicable only when the party to an action is the spouse Ceases upon death or divorce Privilege belongs to either spouse Includes all facts, occurrence or information obtained even prior the marriage

(b)

confused

with

“Marital

REQUISITES FOR THE DISQUALIFICATION BASED ON ATTORNEY-CLIENT (A-C) PRIVILEGE TO APPLY: 1. There is an attorney and client relation; 2. The privilege is invoked with respect to a confidential communication between them in the course of professional employment; 3. The client has not given his consent to the attorney’s testimony. (Sec. 24, b, Rule 130) Communications with third persons may still be deemed confidential when done with the agents of either the attorney or the client. The client owns the privilege and therefore he alone can invoke it. Prohibition is also applicable even to a counsel de oficio. CONFIDENTIAL COMMUNICATION The attorney must have been consulted in his professional capacity EVEN if no fee has been paid. Lawyer need not be in active practice. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. (Haduja v. Madianda, 2007) Communications to an attorney are not privileged where they are voluntary made after he has refused to accept employment. It includes preliminary communications made for the purpose of creating the A-C relationship. (But if it is not for the purpose of creating the A-C relationship – it will not be protected even if the client subsequently hires the same attorney) Includes verbal statements as well as documents or papers entrusted to the attorney

Marital Privilege (Sec. 24a, Rule 130 ) Prohibits only as to knowledge obtained through marital relations Exists whether the husband or wife is a party to the action or not Continues even after death or divorce Privilege belongs to the communicating spouse Only protects those information received during the marriage

ATTORNEY – CLIENT PRIVILEGE

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INSTANCES WHEN THE A-C PRIVILEGE DOES NOT APPLY: 1. Intended to be made public; 2. Intended to be communicated to others; 3. Intended for an unlawful purpose; 4. Received from third person not acting in behalf or as agent of the client; 5. Made in the presence of third parties who are strangers to the attorney-client relationship. THE PERIOD TO BE CONSIDERED IS: The date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. Note: Privilege relationship.

remains even after termination of

The lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the

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protection, which exists not only during the relationship, but extends even after the termination of the relationship. (Regala v. Sandiganbayan, 1996)

Death does not extinguish the patient-physician privilege. Thus, result of autopsies or post mortem examinations are generally intended to be divulged in court.

BUT COMMUNICATION REGARDING: 1. A crime already committed - is privileged communication 2. Contemplated criminal acts or in aid or furtherance thereof - is not covered.

THE PRIVILEGE MAY ALSO BE WAIVED: 1. Section 4 of said Rule 28: if the party examined obtains a report on said examination or takes the deposition of the examiner, he thereby waives any privilege regarding any other examination of said physical or mental condition conducted or to be conducted on him by any other physician. 2. Waiver of the privilege by contract may be found in stipulations in life insurance policies.

THE A-C PRIVILEGE DOES NOT ATTACH: 1. When the attorney is a conspirator 2. When all the attorney has to do is to either affirm or deny the secret revealed by the client to the court 3. When the information is voluntarily given after the attorney has refused to accept employment. (c)

PHYSICIAN – PATIENT PRIVILEGE

Purpose: It is intended to facilitate confidential disclosure by a patient to a physician of all facts and symptoms w/o apprehension to the end that the physician may form a correct opinion and may safely treat his patient. REQUISITES FOR THE DISQUALIFICATION BASED ON PHYSICIAN-PATIENT (P-P) PRIVILEGE TO APPLY 1. The physician is authorized to practice medicine, surgery, or obstetrics; 2. The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; 3. The information, advice or treatment, if revealed, would blacken the reputation of the patient; 4. The privilege is invoked in a civil case, whether patient is a party or not (Sec. 24, Rule 130) Note: It is not necessary that the P-P relationship was created through the voluntary act of the patient. Death of the patient does not extinguish the relation. The privilege extends to all forms of communications as well as to the professional observations and examinations of the patient THE P-P PRIVILEGE DOES NOT ATTACH WHEN: 1. The communication was not given in confidence; 2. The communication is irrelevant to the professional employment; 3. The communication was made for an unlawful purpose, as when it is intended for the commission or concealment of a crime; 4. The information was intended to be made public; 5. There was a waiver of the privilege either by provisions of contract or law. 6. Under Rule 28 of the Rules of Court The results of the physical and mental examination of a person, when ordered by the court, are intended to be made public, hence not privileged.

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Note: If the child is the patient, the parent may claim the privilege. (d)

PRIEST – PENITENT PRIVILEGE

REQUISITES FOR THE DISQUALIFICATION BASED ON MINISTER/PRIEST-PENITENT PRIVILEGE TO APPLY: 1. That the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong; and 2. They must be confidential and penitential in character. (Sec. 24, Rule 130) Covers only confessions of sins with a view of obtaining pardon and spiritual advice or assistance. Thus, communications made in the course of religious discipline but in contemplation of a crime are not privileged. Note: It is the person making the confession who can invoke the privilege. (e)

PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS (STATE SECRETS)

REQUISITES FOR THE DISQUALIFICATION BASED ON PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS TO APPLY: 1. That it was made to the public officer in official confidence; 2. That public interest would suffer by the disclosure of such communication, as in the case of State secrets. Note: This privilege is not for the protection of the public officer but for the protection of the public interest. Thus, when no public interest will be prejudiced - this rule will NOT apply. EXCEPTIONS: 1. That which is useful to vindicate the innocence of an accused person, or lessen the risk of false testimony, or 2. Essential to the proper disposition of the case; or 3. The benefit to be gained by a correct disposition of the litigation was greater than any injury which could inure to the relation by a disclosure of the information

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(f) 1.

2.

3. 4. 5.

6. 7. 8. 9.

OTHER INSTANCES OF PRIVILEGE RA 53 as amended by RA 1477, the publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication unless the court or a House or committee of Congress finds that such revelation is demanded by the Security of the State. Art. 233 of the Labor Code - All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and conciliators and similar officials shall not testify in any court regarding any matter taken up at the conciliation proceedings conducted by them. Voters cannot be compelled to reveal their ballots Trade Secrets will be covered by this privilege Informer’s Privilege: Prosecutor is not to be compelled to dispose the identity of the informer unless the informer is already known to the accused and when the identity of the informer is vital. Those covered in the Secrecy of Bank Deposits Law EO 464: Executive Privilege Income Tax returns Anti-Graft Cases

TESTIMONIAL PRIVILEGE PARENTAL AND FILIAL PRIVILEGE RULE It is not a rule of disqualification but is a privilege NOT to testify. PARENTAL PRIVILEGE Parent cannot be compelled to testify against his child or direct descendants FILIAL PRIVILEGE Child may not be compelled to testify against his parents or other direct ascendants RULE UNDER THE FAMILY CODE GENERAL RULE: No descendant may be compelled to testify against his parents and grandparents EXCEPTION: 1. if such testimony is indispensable in prosecuting a crime against the descendant; or 2. by one parent against the other (Art. 215, The Family Code) Both parental and filial privileges are granted to any person. Persons may voluntary testify, but if they choose to refuse, the rule protects them. REASON FOR THE RULE: The reason for the rule is to preserve “family cohesion” Note: The privilege may now be invoked in both civil and criminal cases.

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ADMISSIONS AND CONFESSIONS 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. It may be verbal or written, express or tacit, or judicial or extrajudicial. (Remedial Law Compendium Vol. II, Regalado) EXPRESS ADMISSIONS Those made in definite, certain and unequivocal language. Implied ADMISSIONS Those which may be inferred from the acts, declarations or omission of a party. Therefore, an admission may be implied from conduct, statement of silence of a party. RES INTER ALIOS ACTA RULE “Res Inter Alios Acta Alteri Noceree Non Debet” Things done between strangers ought not to injure those who are not parties to it. CONSISTS OF TWO PARTS: 1. Sec 28, Rule 130 (Admission by a Third Party) 2. Sec 34, Rule 130 (Similar Acts as Evidence) EXCEPTION: When the 3rd person is a: 1. A partner, agent, joint owner, joint debtor, or has a joint interest with the party (Sec. 29, Rule 130) 2. A co-conspirator (Sec. 30, Rule 130); or 3. A privy of the party (Sec. 31, Rule 130) The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible against his coaccused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. (People vs Raquel, 265 SCRA 248, 1996) i.

ADMISSION BY A PARTY

A voluntary acknowledgement in express terms or by implication by a party interest or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue. Admission by a party may be given in evidence against him. (Sec. 26, Rule 130) REQUISITES FOR ADMISSIONS TO BE ADMISSIBLE

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1. 2. 3. 4.

They must involve matters of fact and not of law; They must be categorical and definite; They must be knowingly and voluntarily made; They must be adverse to the admitter’s interests, otherwise it would be self-serving and inadmissible.

OTHER FORMS OF ADMISSIONS: Verbal or written, express or tacit, judicial or extrajudicial 1. Judicial: One made in connection w/ a judicial proceedings (conclusive – does not require proof) 2. Extrajudicial: Any other admissions (Sec 26 to 32) (Rebuttable – requires proof)

ADMISSIONS BY A PARTY Need not be made against the proprietary or pecuniary interest of the party, although of course, it will greatly enhance its probative weight if it be so made

DECLARATIONS AGAINST INTEREST

Must have been made against the proprietary or pecuniary interest of the party

Made by the party himself and is a primary evidence and competent though he be present in court and ready to testify

Must have been made by a person who is either deceased or unable to testify

Can be made anytime

Must have been made ante litem motam (spoken before a lawsuit is brought)

ii.

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) BASIS OF THE GENERAL RULE: A party is not bound by any agreement to which he has no knowledge and to which he has not given his consent. His rights cannot be prejudiced by the declaration, act or omission of another exception by virtue of a particular relation between them. EXCEPTION: When the 3rd person is a: 1. A partner, agent, joint owner, joint debtor, or has a joint interest with the party (Sec. 29, Rule 130) 2. A co-conspirator (Sec. 30, Rule 130); or 3. A privy of the party (Sec. 31, Rule 130) BASIS OF THE EXCEPTION: A third party may be so united in interest with the partyopponent that the other person’s admissions may be receivable against the party himself. The term “privy” is the orthodox catchword for the relation.

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iii.

ADMISSION BY A CO-PARTNER OR AGENT

The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130) RATIONALE: What is done by an agent is done by the principal REQUISITES FOR THIS EXCEPTION TO APPLY: 1. That the partnership, agency, or joint interest is established by evidence other than the act or declaration – Partnership relation must be shown; 2. The act or declaration is within the scope of the partnership, agency or joint interest with regard to a non-partnership affair: The fact that each partner has individually made a substantially similar admission does not render the aggregate admission competent against the firm. 3. Such act or declaration must have been made during the existence of the partnership, agency or joint interest. Statements made after the partnership dissolved do not fall within the exception.

has

been

BUT if they are made in connection with the winding up of the partnership – such admission is STILL admissible. iv.

ADMISSION BY A CONSPIRATOR

The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (Sec. 30, Rule 130) Application of the requirement that the conspiracy exists must primarily be proved by evidence other than the conspirator’s admission. Applies ONLY to extrajudicial acts or statements NOT to judicial admission as to a testimony given on the witness stand at the trial where the party adversely effected has the opportunity to cross examine the declarant. REQUISITES FOR ADMISSIBILITY: 1. Such conspiracy is shown by evidence aliunde Conspiracy must be established by prima facie proof in the judgment of the court; 2. The admission was made during the existence of the conspiracy - After the termination of a conspiracy, the statements of one conspirator may not be accepted as evidence against any of the other conspirators; 3. The admission related to the conspiracy itself.

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Should relate to the common object. EXISTENCE OF THE CONSPIRACY MAY BE INFERRED: 1. From the acts of the accused 2. From the confessions of the accused 3. Or by prima facie proof thereof Note: If there is no independent evidence of the conspiracy – the extrajudicial confession CANNOT be used against his co-accused (res inter alios rule applies to both EXJ and J admissions) Here, there is no need to produce direct evidence independent circumstantial evidence will suffice. QUANTUM OF EVIDENCE TO PROVE CONSPIRACY: Clear and convincing evidence RULES ON EXTRAJUDICIAL ADMISSIONS MADE BY A CONSPIRATOR AFTER THE CONSPIRACY HAD TERMINATED AND BEFORE THE TRIAL: GENERAL RULE: NOT admissible EXCEPTION: Admissible against the co-conspirator IF: 1. Made in the presence of the co-conspirator who expressly or impliedly agreed therein – as there is tacit admission under Sec 32 2. Where the facts stated in said admission are confirmed in the individual extrajudicial confessions made by the co-conspirators after their apprehension (interlocking confessions) 3. As a circumstance to determine the credibility of a witness 4. As circumstantial evidence to show the probability of the co-conspirator’s participation in the offense. IN ORDER THAT THE EXTRAJUDICIAL STATEMENTS OF A CO-ACCUSED MAY BE TAKEN INTO CONSIDERATION IN JUDGING THE TESTIMONY OF A WITNESS IT IS NECESSARY THAT: 1. The statements are made by several accused, 2. The same are in all material respects identical; and, 3. There could have been no collusion among said co-accused in making such statements. v.

ADMISSION BY PRIVIES

Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (Sec. 31, Rule 130) PRIVITY Mutual succession of relationship to the same rights of property. PRIVIES Those who have mutual or successive relationship to the same right of property or subject matter (i.e. personal representatives, heirs, devises, legatees, assigns, voluntary grantees, or judgment creditors)

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TO BE ADMISSIBLE, THE FOLLOWING REQUISITES MUST CONCUR: 1. There must be a relation of privity between the party and the declarant; 2. The admission was made by the declarant, as predecessor in interest, while holding the title to the property; 3. The admission is in relation to said property. The privity in estate may arise by succession, by acts mortis causa or by acts inter vivos. vi.

ADMISSION BY SILENCE

It is an act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so. (Sec. 32, Rule 130) TO BE ADMISSIBLE THE FOLLOWING REQUISITES MUST CONCUR: 1. He must have heard or observed the act or declaration of the other person; 2. He must have had the opportunity to deny it 3. He must have understood the statement; 4. He must have an interest to object, such that he would naturally have done so, as if the statement was not true; 5. The facts are within his knowledge; 6. The fact admitted or the inference to be drawn from his silence is material to the issue. (People v. Pabrua, 1990) THE RULE ON ADMISSION BY SILENCE APPLIES: 1. Where a person was surprised in the act; or 2. Even if he is already in the custody of the police. Note: Applies to both civil and criminal cases. NO ADMISSION BY SILENCE WHEN: 1. Silence of an accused under custodial investigation 2. Where the failure to answer was caused by constraint, or 3. The party was not aware at the time that he had an interest, or 4. The party believed that he had no interest or was only indirectly affected CONFESSIONS A categorical acknowledgement of guilt made by an accused in a criminal case, w/o any exculpatory statement or explanation. (Regalado) 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) IF the accused admits the act BUT alleges a justification – it is merely an admission ADMISSIONS

CONFESSIONS

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Do not directly involve acknowledgment of the guilt of the accused or the criminal intent to commit the offense with which he is charged. Usually applied in criminal statements of fact by the accused

Stating or acknowledging that he had committed or participated in the commission of a crime Declaration made at any time

Confession of Judgment in Civil Cases = Admission of Liability FORMS OF CONFESSION: 1. Oral and under oath 2. In writing (need not be under oath) Note: Sec 33 refers to EX-J Confessions TYPES OF CONFESSIONS 1. Judicial Confession: One made before a court in which the case is pending and in the course of legal proceedings therein • By itself, can sustain conviction, even for a capital offense • But for Capital Offenses: there must be evidence presented other than the plea of guilty, also proof that such plea was made voluntarily and w/ full comprehension 2. Extrajudicial (EX-J) Confession: One made in any other place or occasion GENERAL RULE: Cannot sustain a conviction EXCEPTION: Unless corroborated by evidence of the corpus delicti REQUIREMENTS FOR THE ADMISSIBILITY OF EXTRAJUDICIAL CONFESSIONS 1. The confession must involve an express and categorical acknowledgment of guilt; 2. The facts admitted must be constitutive of a criminal offense; 3. The confession must have been given voluntarily; 4. the confession must have been intelligently made, the accused realizing the importance or legal significance of this act; 5. There must have been no violation of Section 12, Art. III of the 1987 Constitution. (Rights in custodial investigation)

PREVIOUS CONDUCT AS EVIDENCE GENERAL RULE: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. (Sec. 34, Rule 130) EXCEPTION: Where the evidence or similar acts may prove: 1. A specific intent or knowledge; 2. Identity;

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3. 4. 5.

A plan, system or scheme; A specific habit; or Established customs, usages and the like

Basis: Evidence must be confined to the point in issue in the case on trial. Evidence of collateral offenses must not be received as substantive evidence of the offense on trial. Purpose: To compel the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the court from the charge immediately before it. EXAMPLES OF THE EXCEPTIONS: 1. Evidence of another crime is admissible in a prosecution for robbery: • When it has the tendency to identify the accused or show his presence at the scene of the crime • NOT where the evidence is to prove a commission of another crime wholly independent of that which is on trial. 2. Previous acts of negligence, is admissible to show knowledge or intent.

TESTIMONIAL KNOWLEDGE A witness can testify only to those facts which are from his personal knowledge; that is, which are derived from his own perception. (Sec. 36, Rule 130)

HEARSAY AND EXCEPTIONS TO THE HEARSAY RULE HEARSAY RULE GENERAL RULE: A witness can testify only to those facts which he knows of his personal knowledge, derived from his own personal perception. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS A witness may testify to the statements made by a person if, for instance, the fact that such statements were made by the latter would indicate the latter’s mental state or physical condition; Independent of whether the facts stated are true, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. (Regalado) MEANING OF HEARSAY Evidence not proceeding from personal knowledge of the witness, but from the mere repetition of what he has heard others say. (Black’s Law Dictionary, 5th Ed.) Affidavit is merely hearsay evidence as hearsay where its affiant/maker did not take the witness stand. (Dantis v. Maghinang, 2013) REASON FOR EXCLUSION OF HEARSAY EVIDENCE

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Due to the trustworthiness and 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-ofcourt declarant or actor upon whose reliability on which the worth of the out-of-court testimony depends.

8. 9. 10.

EXCEPTIONS TO THE HEARSAY RULE: Dying Declaration (Sec. 37, Rule 130) Declaration Against Interest (Sec. 38) Pedigree (Sec. 39) Family Tradition (Sec. 40) Common Reputation (Sec. 41) Part of Res Gestae (Sec. 42) Entries Made in the Ordinary Course Business (Sec. 43) Official Records (Sec. 44) Commercial List (Sec. 45) Prior Testimony (Sec. 47)

1.

DYING DECLARATION (DD)

• 1. 2. 3. 4. 5. 6. 7.

A statement may nor be admissible as a dying declaration, but may be admissible as part of res gestae (People v. Hernandez; People v. Laquinon) of

Statements made by a person after the mortal wound has been inflicted under the belief that the death is certain, stating the fact concerning the cause of and the circumstances surrounding the attack. (People v. Velasco Jr., 2007) Also known as “Ante Mortem Statements” or “Statement in Articulo Mortis” REQUISITES FOR DD TO BE ADMISSIBLE: 1. That the death is imminent and the declarant is conscious of such fact; 2. That the declaration refers to the cause and the surrounding circumstances of such death; 3. That the declaration refers to the facts which the victim is competent to testify to; 4. That the declaration is offered in a case wherein the declarant’s death is subject of the inquiry (the victim necessarily must have died); 5. That the statement must be complete in itself. In order for a dying declaration to be held admissible, four requisites must concur: first, the declaration must concern the cause and surrounding circumstances of the declarant's death; second, at the time the declaration was made, the declarant must be under the consciousness of an impending death; third, the declarant is competent as a witness; and fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim. (People v Serenas & Labad, 2010) A dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact.

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The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received. In this case, the dying declaration was not complete.(People v De Joya, 203 SCRA 343)

2.

DECLARATION AGAINST INTEREST

It is the declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true. THERE IS A VITAL DISTINCTION BETWEEN ADMISSIONS AGAINST INTEREST AND DECLARATIONS AGAINST INTEREST: • Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness. • Declarations against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence, and constitute an exception to the hearsay rule. (Lazaro vs. Agustin, 2010) DECLARATIONS AGAINST INTEREST Made by a person who is neither a party nor in privity with a party to the suite. Secondary Evidence Exception to the Hearsay Rule Admissible ONLY when the declarant is UNavailable as a witness Must be made ante litem motam (before the controversy) May be admitted against himself/successor in interest and against 3rd parties

ADMISSIONS AGAINST INTEREST Made by a party to a litigation or by one in privity with or identified in legal interest with such party Primary Evidence Covered by the Hearsay Rule Admissible w/n the declarant is available as a witness May be made at any time before/during the trial Used ONLY against the party admitting.

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REQUISITES IN ORDER FOR A STATEMENT TO BE ADMISSIBLE AS A DAI 1. the declarant must not be available to testify; 2. the declaration must concern a fact cognizable by the declarant; and 3. the circumstances must render it improbable that a motive to falsify existed. (Fuentes v. CA, 1996) REASONS FOR SUCH ADMISSION: 1. Necessity such declarations are the only mode of proof available 2. Trustworthiness persons do not make statements that are disadvantageous to themselves without substantial reason to believe that the statements are true. Self-interest induces men to be cautious in saying anything against themselves. INTEREST COVERED: 1. Proprietary interest 2. Penal interest 3. Pecuniary interest Note: It is essential that at the time of the statement, the declarant’s interest affected is actual/real/apparent not merely contingent/future/conditional SELF- SERVING DECLARATION: Statements favorable to or intended to advance the interests of the declarant • It is inadmissible as being hearsay if the delcarant is unavailable as a witness • Opposite of DAI The general rule is stated to be that the declaration of a person other than accused confessing or tending to show that he committed the crime are not competent for accused on account of the hearsay doctrine. However, if a man deliberately acknowledged himself to be the perpetrator of a crime and exonerated the person charged with the crime, and there was other evidence indicative of the truthfulness of the statement, the accused man should not be permitted to go to prison or to the electric chair to expiate a crime he never committed. (People v. Toledo, 1928) 3.

ACT OR DECLARATION ABOUT PEDIGREE

PEDIGREE Includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. REQUISITES IN ORDER THAT PEDIGREE MAY BE PROVED BY ACTS OR DECLARATIONS OF RELATIVES 1. The declarant is dead or unable to testify 2. The pedigree must be in issue 3. The declarant must be a relative of the person whose pedigree is in issue 4. The declaration must be made before the controversy arose

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5.

The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. (Mendoza v. CA, Tunacao, 1991)

Pedigree May be Established or Proved By: 1. The act or declaration of a relative (Sec. 39) 2. The reputation or tradition existing in his family (Sec. 40) 3. Entries in Family Bibles (Sec. 40) 4. With respect to marriage, by common reputation in the community (Sec. 41) Nevertheless, pedigree may be proved by other species of direct primary evidence. Note: The relationship must preliminarily be proved by direct or circumstantial evidence. No specific degree of relationship is required BUT the weight to which such act or declaration is entitled may be affected by the degree of relationship Note: Reputation between the declarant and the person subject of inquiry must be legitimate unless the issue is the legitimacy itself. 4.

FAMILY REPUTATION REGARDING PEDIGREE

OR

TRADITION

The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. REQUISITES: 1. that there is a controversy in respect to the pedigree of any of the members of a family; 2. that the reputation or tradition of the pedigree existed previous to the controversy; and 3. that the witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person. (People v. Opiana, 2001) The word "pedigree" under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates when and places where these facts occurred and the names of relatives. Note: A statement as to one’s date of birth and age as learned from parents or relatives is an ante litem motam declaration of family tradition Such statement prevails over a mere opinion of a trial judge BUT cannot prevail over a secondary statement of the father SECTION 39

SECTION 40

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Act or declaration against pedigree Witness need not be a member of the family Testimony is about what declarant, who is dead or unable to testify, said concerning the pedigree of the declarant’s family Relation bet the declarant and the person subject of inquiry must be established by independent evidence

Family reputation or tradition regarding pedigree Witness is a member of the family

NOTE: Here, character is permitted to be established by his common reputation

Testimony is about family reputation or tradition covering matters of pedigree.

EVIDENCE OF NEGATIVE GOOD REPUTE Where the foundation proof shows that the witness was in such position that he would have heard reports derogatory to one’s character, the reputation testimony may be predicated on the absence of reports of bad reputation or on the fact that the witness heard nothing against the person.

The witness himself is the one to whom the fact relates. No need to establish relationship by independent evidence.

FAMILY TRADITION Testimony made by a witness regarding a declaration made by someone deceased, when both the witness and the declarant are members of the same family, is admissible as evidence of family tradition. 6.

5.

COMMON REPUTATION

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. (Regalado) Evidence may be given upon trial of monuments and inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree. REQUISITES FOR COMMON REPUTATION 1. The subject of inquiry must be facts of public or general interest more than 30 years old, respecting marriage or moral character; 2. The evidence must refer to facts ante litem motam; 3. The facts may be established by: a. Testimonial evidence of competent witness; b. Monuments and inscription in public places; c. Documents containing statements of reputation. COMMON REPUTATION OR GENERAL REPUTATION IS ADMISSIBLE TO PROVE 1. Facts of public interest more than 30 years old 2. Facts of general interest more than 30 years old 3. Marriage 4. Moral Character Note: Common reputation must have existed ante litem motam DEFINITION OF TERMS: • Public Interest: Those of National Interest • General Interest: Those affecting inhabitants of a particular region or community • Character: Inherent qualities of a person • Reputation: Opinion of him by others (Should be existing in his place of residence, but may also exist in a place where he is known best)

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PART OF THE RES GESTAE

Res Gestae which means “things done”. Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation. (People v. Calunsag, 2014) FACTORS TO CONSIDER IN DETERMINING WHETHER STATEMENTS OFFERED AS PART OF RES GESTAE HAVE BEEN MADE SPONTANEOUSLY 1. the time that has lapsed between the occurrence of the act or transaction and the making of the statement; 2. the place where the statement is made; 3. the condition of the declarant when the utterance is given; 4. the presence or absence of intervening events between the occurrence and the statement relative thereto; and 5. the nature and the circumstances of the statement itself. TWO GENERAL CLASSES OF DECLARATION: 1. Spontaneous statements: Statements in connection with a startling occurrence relating to that fact and in effect forming part thereof. (Sec. 42, Rule 130) 2. Verbal Acts: Statements accompanying an equivocal act, on the theory that they are the verbal parts of the act to be explained. (Sec. 42, Rule 130) REQUISITES FOR RES GESTAE NO 1: SPONTANEOUS STATEMENTS (1) The principal act, the res gestae, be a

REQUISITES FOR RES GESTAE NO 2: VERBAL ACTS (1)

The res gestae or principal act or to

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startling occurrence; The statements were made before the delcarant had the opportunity to contrive (3) The statements must refer to the occurrence in question and its attending circumstances (4) The statement must be spontaneous. The res gestae is the startling occurrence Statements may be made prior, during or immediately after the startling occurrence. (2)

(2)

(3)

(4)

be characterized must be equivocal; Such act must be material to the issue The statements must accompany the equivocal act. The statements give a legal significance to the equivocal act

The res gestae is the equivocal act. Verbal act must be contemporaneous with or accompany the equivocal act.

REQUISITES FOR ADMISSIBILITY OF RES GESTAE: The statement must be: 1. Be Spontaneous; 2. Made while a startling occurrence is taking place or immediately prior or subsequent; 3. Relates to the circumstances of the startling occurrence; and 4. Must be involuntary and simultaneously wrung from the witness by the impact of the occurrence REASONS FOR ADMISSION 1. Necessity - Natural and spontaneous utterances are more convincing than the testimony of a person on the stand. 2. Trustworthiness - The statement is made indistinctively. The facts speaking thru the party and not the party speaking thru the facts. RES GESTAE IN CONNECTION WITH A HOMICIDAL ACT May be made by the killer himself after or during the killing OR that of a 3rd person. May precede or be made after the homicidal attack was committed. Justification in the spontaneity of the statement.

DYING DECLARATIONS

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.

Note: If both elements for res gestae and dying declarations are present – they may be admitted as both. WHEN MUST THE STATEMENT OR ACT BE MADE: GENERAL RULE: While the declarant was under the immediate influence of the startling occurrence. Hence,

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done immediately prior, during or subsequent to the events. EXCEPTION: 1. If the declarant was unconscious – statements regarding the event will still be admissible 2. If the declarant did not have the opportunity to concoct or contrive a story – it is still admissible even if statement was made after hours STATEMENTS OR OUTCRIES AS PART OF RES GESTAE ARE ADMISSIBLE: 1. To establish the identity of the assailant 2. To prove the complicity of another person in the crime 3. To establish an admission of liability on the part of the accused 7.

ENTRIES IN THE COURSE OF BUSINESS

SHOP BOOK RULE (Sec. 43, Rule 130) REQUISITES: 1. The person who made the entry must be dead or unable to testify. 2. The entries were made at or near the time of the transaction to which they refer; 3. The entrant was in a position to know the facts stated in the entries; 4. The entries were made in his professional capacity or in the performance of a duty whether legal, contractual, moral or religious; and 5. The entries were made in the ordinary or regular course of business or duty. RULES FOR ADMISSIBILITY OF BUSINESS ENTRIES 1. If the Entrant is Available as a Witness – the entries will be INADMISSIBLE as an exception to the hearsay rule. • They may be used as a memo to refresh his memory while testifying in the transaction 2. There is no necessity to bring into court all the clerks or employees who individually made the entries. 3. It is sufficient that the person who supervises the work of the employees testify: • That the account was prepared under his supervision. • That the entries were entered in the ordinary course of business. 4. There is no precise moment required when the entries should be made – it is sufficient if it is made w/in a reasonable time while the memory of the facts is unimpaired. PROBATIVE VALUE: Prima Facie of the facts stated therein 8.

ENTRIES IN OFFICIAL RECORDS

Those made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law. REQUISITES RECORDS

FOR

ADMISSIBILITY

OF

OFFICIAL

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1.

2.

3.

Entries were made by: a. a public officer in the performance of his duties; or b. by a person in the performance of a duty specially enjoined by law; The entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and Such entries were duly entered in a regular manner in the official records. (Alvarez v. PICOP Resources, 2009).

REASONS FOR ADMISSION 1. Necessity Practical impossibility of requiring the official’s attendance as a witness to testify to the innumerable transactions occurring in the course of his duty. 2. Trustworthiness there is a presumption of regularity in the performance of official duty. EXAMPLES OF OFFICIAL RECORDS: • A register, a cash book, or an official return or certificate, • motor vehicle accident report (if made in the performance of the officer’s duties, at about the time of the accident, based on information given as personal knowledge) • Sheriff’s return (statement in the performance of a duty especially enjoined by law) – no need for the sheriff to testify ENTRIES IN THE COURSE OF BUSINESS (SEC 43) Entries are made by a person who is dead or unable to testify Needs authentication Best evidence rule applies Entries are made pursuant to a duty, either legal, contractual, moral or religious

ENTRIES IN OFFICIAL RECORDS (SEC 44) No such requirement No need Exception to the best evidence rule The entrant is a public officer, or if a private individual, must have acted pursuant to a legal duty

Note: The entrant must have been competent with respect to the facts stated in his entries. Entries made by a priest in the register of the facts of baptism are NOT admissible to prove the date of birth or its relation to persons A priest is not competent to testify to the truth of these facts. BUT church registries are ADMISSIBLE as evidence of the facts with respect to marriage solemnized by the priest (BUT needs to be authenticated)

If the certificate is transmitted to a public officer – it is admissible w/o a need for prior authentication. ENTRIES IN OFFICIAL RECORDS MAY BE PROVED (SEE SEC 24 AND 25 RULE 132) PROBATIVE VALUE: prima facie of the facts stated therein The rule provides that entries in official records made in the performance of the duty of a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. The necessity of this rule consists in the inconvenience and difficulty of requiring the official's attendance as a witness to testify to the innumerable transactions in the course of his duty. The document's trustworthiness consists in the presumption of regularity of performance of official duty. (Dimaguila v. Monteiro, 2014) The written entries in the clinical case are prima facie evidence of the facts therein stated, the said entries having been made in official records by a public officer of the Philippines in the performance of his duty especially enjoined by law, which is that of a physician in a government hospital. (People v. Leones, 117 SCR 382) Entries in official records, as in the case of a police blotter, are only prima facie evidence of the facts therein stated. They are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometimes from either partial suggestions or for want of suggestions or inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that pertain to the subject. It is understandable that the testimony during the trial would be more lengthy and detailed than the matters stated in the police blotter. (People v. Ortiz, 1996) 9.

COMMERCIAL LISTS

For a document to quality as a commercial list, and hence be an exemption to the hearsay rule, the statement of matters contained in a periodical, may be admitted only "if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein." (Meralco vs. Quisumbing, 2000) REQUISITES FOR ADMISSIBILITY: 1. it is a statement of matters of interest to persons engaged in an occupation; 2. such statement is contained in a list, register, periodical or other published compilation; 3. said compilation is published for the use of persons engaged in that occupation, and 4. it is generally used and relied upon by persons in the same occupation.(PNOC Shipping and Transport Corp. v. CA, 1998) REASONS FOR ADMISSION:

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1.

2.

Necessity - Because of the unusual accessibility of the persons responsible for the compilation of matters contained in a list, register, periodical or other published compilation and tremendous inconvenience it would cause to the court if it would issue summons to these numerous individuals. Trustworthiness - They have no motive to deceive and they further realize that unless the list, register, periodical or other published compilation are prepared with care and accuracy, their work will have no commercial and probative value.

Ex. Mortality tables, annuity tables 10.

LEARNED TREATIES

Learned Treaties i.e. published treatise, periodical or pamphlet on a subject of history, law, science, or art as tending to prove the truth of a matter stated therein. REQUISITES FOR ADMISSIBILITY 1. That the court takes judicial notice thereof; or 2. The same are testified by a witness expert on the subject REASONS FOR ADMISSION 1. Necessity - Even if such person is legally procurable, the expense is frequently disproportionate. 2. Trustworthiness - Learned writers have no motive to misrepresent. He is aware that his work will be carefully scrutinized by the learned members of his profession and that he may be subject to criticisms and ultimately rejected as an authority of the subject matter if his conclusions are found to be invalid Petitioners cited various scientific studies or articles and websites culled from the Internet. However, the said scientific studies and articles attached to the Petition were not testified to by an expert witness, and are basically hearsay in nature and cannot be given probative weight. (Sec. Paje v. Cong. Casino, 2015) 11.

TESTIMONY OR DEPOSITION AT A FORMER TRIAL

REQUISITES FOR ADMISSIBILITY 1. The testimony or deposition of a witness deceased or otherwise unable to testify; 2. The testimony was given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the same matter; 5. The adverse party having had the opportunity to cross-examine him. (Republic v. Sandiganbayan, et al, 2011) INABILITY TO TESTIFY Inability proceeding from a grave cause, almost amounting to death (ex. Losing one’s power of speech)

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Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial does NOT amount to such inability (Griffith vs. Sauls, 77 Tex 630, 14 S.W. 230, 231; Sec. 37, Rule 123) ACTIONS MAY BE ESSENTIALLY DIFFERENT Testimony given in a civil case is admissible in a subsequent criminal case PROVIDED the above requisites are met. REASONS FOR ADMISSION 1. Necessity - Former could no longer testify 2. Trustworthiness - Since such had been given in a former action under oath, where witness was or might have been cross examined (Republic v. Sandiganbayan, et al. 2011) The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are the necessity for the testimony and its trustworthiness. However, before the former testimony or deposition can be introduced in evidence, the proponent must first lay the proper predicate therefor. (Republic v. Sandiganbayan, et al., 2011) RULE ON ADMISSIBILITY OF PRIOR JUDGMENT (NOT TESTIMONY) 1. A judgment in a criminal proceeding cannot be read in evidence in a civil action against a person not a party thereto to establish any fact therein 2. The matter is res inter alios and cannot invoked as res judicata 3. It may only be admitted in a civil case by way of inducement or to show a collateral fact relevant to the issue in the civil action 4. It may not be admitted to prove the plaintiff’s action or the defendant’s defense – it is not binding upon the parties in the civil action Ratio: Parties are not the same and different rules of evidence are applicable to each HOWEVER, in Miranda v. Malate: Judgment of conviction in the absence of collusion between the accused and the offended party is binding and conclusive to a person subsidiarily liable with regard to his liability and to the amount thereof.

OPINION RULE OPINION An inference or conclusion drawn from facts observed. GENERAL RULE: Witnesses must give the facts. Their opinion is INADMISSIBLE EXCEPTIONS: Opinion of the Witness is Admissible (Sec. 49 &50, Rule 130) 1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess, that is when he is an expert (Sec. 49);

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2.

3. 4. 5.

Regarding the identity or the handwriting of a person, when he has knowledge of the person or handwriting, whether he is an ordinary or expert witness (Sec. 50 a & b) On the mental sanity of a person, if the witness is sufficiently acquainted with the former or if the latter is an expert witness (Sec. 50c) On the emotion, behavior, condition, or appearance of a person which he has observed; and (Sec. 50d) On ordinary matters known to all men of common perception, such as the value of ordinary household articles (Galian v. State Assurance Co., Ltd.)

REASON FOR THE RULE: It is for the court to form an opinion concerning the facts in proof of which evidence is offered. Witnesses must testify to facts w/in their knowledge and not their opinions. EXPERT WITNESS one who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on which he proposes to express an opinion. (People v. Abriol, 2001) Test: Whether the opinion called for will aid the fact finder in resolving an issue DEGREE OF SKILL OR KNOWLEDGE REQUIRED OF AN EXPERT WITNESS There is no definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. IT IS SUFFICIENT THAT THE FOLLOWING FACTORS ARE PRESENT: 1. Training and education 2. Particular, first hand familiarity with the facts of the case 3. Presentation of authorities or standards upon which his opinion is based. REQUISITES FOR ADMISSIBILITY OF EXPERT EVIDENCE - ONLY IF: 1. The matter to be testified to is one that requires expertise, and 2. The witness had been qualified as an expert VALUE OF AN EXPERT WITNESS: It is NOT conclusive BUT purely advisory. The courts are not bound by the expert’s findings. RULES ON EXPERT TESTIMONY 1. Courts must consider all the circumstances of the case (expert’s qualifications, experience and degree of learning, the basic and logic of his conclusions and other evidence on record) 2. The value of expert testimony depends largely on the extent of the experience or studies of such expert. Note: An expert witness may base his opinion either on the first-hand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to

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him and on the assumption that they are true, formulates his opinion on the hypothesis. PROBATIVE VALUE OF EXPERT EVIDENCE ONLY when the subject of inquiry is of such a technical nature that a layman can possibly have no knowledge thereof that courts must depend and rely upon experts. Conflicting expert evidence have neutralizing effect on contradictory conclusions. They generate doubt. A non-expert private individual, may examine certain contested documents, it is not necessarily null and void if there are facts w/in his knowledge which may help the court in the determination of the issue. COURTS ARE NOT BOUND BY EXPERT’S TESTIMONY Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word "may" signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law. (Tabao v. People, 2011) ORDINARY OPINION EVIDENCE That which is given by a witness who is of ordinary capacity and who has by opportunity acquired a particular knowledge which is outside the limits of common observation and which may be of value in elucidating a matter under consideration. MAY BE RECEIVED IN EVIDENCE REGARDING: 1. The identity of a person about whom he has adequate knowledge; 2. A handwriting with which he has sufficient familiarity; and 3. The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (Sec. 50, Rule 130) SHORTHAND RENDERING OF FACTS Instantaneous conclusions of the mind. The witness may testify as to the emotion, behavior, condition or appearance of a person The court said that the genuineness of a handwriting may be proved by (not mandatory): Witness who actually saw the person writing the instrument, Witness familiar with the handwriting and give his opinion thereto, opinion being an exception to the opinion rule, Comparison by the court of the questioned and admitted genuine specimen, Expert evidence. In order to bring about an accurate comparison and analysis, the standards of

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comparison must be as close as possible in point of time of the suspected signature. (Domingo v. Domingo, 2005) EXPERT WITNESS RULE ORDINARY WITNESS RULE

DISTINGUISHED

EXPERT WITNESS (SEC. 49, RULE 130)

QUALIFICATION

Establish possession of special skill, knowledge or training

WHEN ADMISSIBLE

Upon concurrence of: Subject requires that court seeks aid of men specially skilled; Witness is an expert who possess the special skill, knowledge or experience required; and Relevant to the matter in issue

HYPOTHETICAL QUESTIONS

Must based such

be on

FROM

ORDINARY WITNESS (SEC. 50, RULE 130) Establish “Sufficient familiarity”, “adequate knowledge” or “Sufficient acquaintance” Matter is as regards: the identity of a person about whom he has adequate knowledge; A handwriting with which he has sufficient familiarity; and The mental sanity of a person with whom he is sufficiently acquainted. Evidence relevant

is

Cannot be based on such

CHARACTER EVIDENCE CHARACTER The aggregate of the moral qualities which belong to and distinguish an individual person. CHARACTER

REPUTATION

Possession of person of certain qualities of mind, morals, distinguishing him from others Internal

what a person is said, estimated, supposed or thought to be by others External Accepted reality by others Shadow

Reality Substance

GENERAL RULE: Character evidence is NOT admissible in evidence

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RATIO: The evidence of a person’s character does not prove that such person acted in conformity with such character or trait in a particular occasion. CHARACTER EVIDENCE IN CRIMINAL CASES GENERAL RULE: The prosecution may not prove the BAD Moral Character (MC) of the accused which is pertinent to the moral trait involved in the offense charged. EXCEPTION: The prosecution may prove BAD MC at the rebuttal stage - IF the accused, in his defense attempts to prove his GOOD MC. GOOD or BAD MC of the offended party may always be proved if such evidence tends to establish the probability or improbability of the offense charged. EXCEPTION TO THE EXCEPTION: Proof of the bad character of the victim is not admissible: 1. In a murder case: If the crime was committed through treachery and evident premeditation 2. In a rape case: If through violence and intimidation 3. 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. (RA 8505) RATIO: To avoid unfair prejudice to the accused who may be convicted because of such character. CHARACTER EVIDENCE IN CIVIL CASES GENERAL RULE: Moral Character of either party can NOT be proved EXCEPTION: Unless it is pertinent to the issue of character involved in the case Note: Here, the issue involved must be character. (Ex. Civil actions for damages arising from the offenses of libel slander or seduction) IN BOTH CRIMINAL AND CIVIL CASES BAD moral character of a witness may always be proved by either party but NOT evidence of his character, UNLESS it has been impeached.

F. BURDEN OF PROOF AND PRESUMPTIONS (RULE 131) BURDEN OF PROOF Burden of Proof or “onus probandi”, defined: Obligation imposed upon a party who alleges the existence of facts necessary for the prosecution of his action or defense to establish the same by the requisite quantum of evidence. UPON WHOM BURDEN OF PROOF RESTS: CRIMINAL CIVIL CASES CASES The burden of On the party who would be proof is always defeated if no evidence were given with the on either side. prosecution

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Has the burden of proof to show the truth of his allegations if the defendant raises a negative defense. (w/ respect to his complaint) PLAINTIFF

DEFENDANT

CROSS CLAIMANT

Note: It is required that courts determine first if the evidence of the prosecution has at least shown a prima facie case before considering the evidence of the defense. *If established – then the burden is shifted upon the accused to prove otherwise

Has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff. (w/ respect to his counterclaim) w/ respect to his cross claim

PRESUMPTIONS An inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. Note: The basic facts constituting a presumption must first be proved. Otherwise, the presumption does not arise. In the latter case, it is then incumbent upon the party who has failed to prove these facts to present competent evidence to establish his allegations. A presumption shifts the burden of going forward with the evidence. It imposes on the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption. CONCLUSIVE PRESUMPTION 1. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; 2. 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. CONCLUSIVE PRESUMPTIONS MAY EITHER BE: 1. Estoppel in Pais 2. Estoppel by Deed ESTOPPEL IN PAIS

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Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (Sec. 2(a), Rule 131) ESTOPPEL BY DEED 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 tenant is estopped from asserting a better title not only in himself but also in some third person including the State. (Borre v. CA, 1988) This estoppel applies even though the lessor had no title at the time the relation of [the] lessor and [the] lessee was created, and may be asserted not only by the original lessor, but also by those who succeed to his title." Once a contact 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. (Samelo v. Manotok Services, Inc., 2012) DISPUTABLE PRESUMPTIONS The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: 1. That a person is innocent of crime or wrong; 2. That an unlawful act was done with an unlawful intent; 3. That a person intends the ordinary consequences of his voluntary act; 4. That a person take ordinary care of his concerns; 5. That evidence willfully suppressed would be adverse if produced; 6. That money paid by one to another was due to the latter; 7. That a thing delivered by one to another belonged to the latter; 8. That an obligation delivered up to the debtor has been paid; 9. That prior rents or installments had been paid when a receipt for the later ones is produced; 10. That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him; 11. That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; 12. That a person acting in a public office was regularly appointed or elected to it; 13. That official duty has been regularly performed; 14. That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; 15. That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters

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within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; 16. That private transactions have been fair and regular; 17. That the ordinary course of business has been followed; 18. That there was a sufficient consideration for a contract; 19. That a negotiable instrument was given or indorsed for a sufficient consideration; 20. That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; 21. That a writing is truly dated; 22. That a letter duly directed and mailed was received in the regular course of the mail; 23. That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: a. A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; b. A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; c. A person who has been in danger of death under other circumstances and whose existence has not been known for four years; d. If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. 24. That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; 25. That things have happened according to the ordinary course of nature and the ordinary habits of life;

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26. That persons acting as copartners have entered into a contract of co-partnership; 27. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; 28. That property acquired by a man and 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. 29. That 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. 30. That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: a. A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; b. A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. 31. That a thing once proved to exist continues as long as is usual with things of that nature; 32. That the law has been obeyed; 33. That a printed or published book, purporting to be printed or published by public authority, was so printed or published; 34. That a printed or 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; 35. That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; 36. That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: a. If both were under the age of fifteen years, the older is deemed to have survived; b. If both were above the age of sixty, the younger is deemed to have survived;

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c.

37.

If one is under fifteen and the other above sixty, the former is deemed to have survived; d. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; e. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of 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)

PRESUMPTION OF LEGITIMACY OR ILLEGITIMACY OF A CHILD There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (Sec. 4, Rule 131)

G. PRESENTATION OF EVIDENCE EXAMINATION OF WITNESS GENERAL RULE: The testimony of the witness must be given in open court (Sec. 1, Rule 132) EXCEPTION: Such requirement may be supplanted 1. In civil cases: by depositions pursuant to and under the limitations of Rules 23 and 24 2. In criminal cases: by depositions or conditional examinations, pursuant to Sec 12 to 15 Rule 119 and Rule 123, or by the records of the preliminary investigation Note: Mere presentation of the affidavits of prosecution witnesses subject to cross-examination is not allowed by the Rules of Court. (People vs. Estenzo, 1976) But, summary procedures may be authorized by SC in special cases (i.e. ejectment, violation of traffic laws, rules and regulations, violation of the rental law). Also, simplified procedures may be adopted by the SC which may provide that affidavits or counter-affidavits may be admitted in lieu of oral testimony. (Revised Rule on Summary Procedure; Remedial Law Compendium Vol. II, Regalado) HOW ORAL EVIDENCE IS GIVEN GENERAL RULE: It is usually given orally in open court. Therefore, generally, the testimonies of witnesses cannot be presented in affidavits. EXCEPTION: Testimonies of witnesses may be given in affidavits is under the Rules of Summary Procedure (BP 129)

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Purpose: to enable the court to judge the credibility of the witness by the witness’ manner of testifying, their intelligence, and appearance. Testimony of witnesses shall be given under oath or affirmation. TWO-FOLD OBJECT IN REQUIRING A WITNESS TO BE SWORN: 1. By affecting the conscience of the witness to compel him to speak the truth; 2. If he willfully falsifies that truth, that he may be punished by perjury. The right to have the witness sworn may be waived If a party fails to object to the taking of the testimony of a witness without the administration of an oath, he will be deemed to have waived his objection. How Testimony of the Witness Should be Elicited (1) By question of counsel (2) The court may also propound questions either on the direct or cross-examination of the witness or suggest questions to counsel. Note: The testimony of a witness cannot be considered self-serving if he is subjected to crossexamination. Self-serving evidence is one made out of court and is excluded on the same ground as hearsay evidence, i.e. deprivation of the right of cross examination (Co vs. CA, G.R. No. 52200,1980) Questions propounded to a witness must: (1) Not be indefinite or uncertain; (2) Be relevant; (3) Not be argumentative; (4) Not for conclusion of law; (5) Not call for opinion or hearsay evidence; (6) Not call for illegal answer; (7) Not call for self-incriminating testimony; (8) Not be leading; (9) Not be misleading; (10) Not to tend reputation of witness; (11) Not to be repetitions; (12) Not call for a narration. Nevertheless, the court itself may propound questions either on the direct or cross-examination of the witness or may suggest questions that should be propounded by counsel. (People v. Santos, G.R. No. 172322, 2006)

Rights and Obligations of a Witness (1) (2) (3)

Rights of a Witness To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; Not to be detained longer than the interests of justice require; Not to be examined except only as to matters pertinent to the issue;

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(4)

Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (Sec. 3, Rule 132)

Scope and Limits of Cross Examination (1) American Rule Restricts crossexamination to facts which are connected with the matters that have been stated in the direct examination of the witness (2) English Rule - A witness may be crossexamined, not only upon matters testified to by him on his direct examination, BUT ALSO on all matters relevant to the issue

Obligations of a Witness GENERAL RULE: A witness cannot refuse to answer questions material to the inquiry even if it may tend to establish a claim against him

What Rule Do we Follow? – BOTH GENERAL RULE: We follow the English Rule – However, it does not mean that the party is making the witness his own, as stated in Sec 5

EXCEPTION: He may validly refuse to answer: (1) Under the right against self-incrimination (If it will subject him to punishment for an offense) (a) Available in civil, criminal and administrative cases; (b) May be with reference to the offense involved in the same case where he is charged or in another case; (c) It may be waived however in immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony. (2) Under the right against self-degradation (If it will have a direct tendency to degrade his character)

EXCEPTION: We follow the American Rule (may only be cross-examined on matters covered by direct examination) when: (1) The witness is an unwilling or hostile witness as so declared by the court OR is an adverse party (2) The witness is an accused who testifies as a witness in his own behalf

(5)

Hostile Witness - One declared so by the court upon adequate showing of his – adverse interest, unjustified reluctance to testify or his having misled the party into calling to the stand. Misleading Facts (Questions which assumes facts not on record), IF asked: (1) On cross-examination: Objectionable for being misleading (2) On direct-examination: Objectionable for lack of basis

Order in the Examination of Witnesses The order in which an individual witness may be examined is as follows: 1. Direct examination by the proponent; 2. Cross-examination by the opponent; 3. Re-direct examination by the proponent; 4. Re-cross-examination by the opponent. (Sec. 4, Rule 132) i.

ii.

Doctrine of Incomplete Testimony: When cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent GENERAL RULE: Such testimony should be stricken from the record.

Direct Examination It is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (Sec. 5, Rule 132)

EXCEPTION: However, in criminal cases when the prosecution witness was extensively cross-examined on the material points (essential elements of the crime) and thereafter failed to appear and cannot be produced despite a warrant for his arrest – striking out is not warranted (People v. Gorospe, 1984)

Cross Examination Upon the termination of the direct examination, the witness may be cross-examined by the adverse party. (Sec. 6, Rule 132)

When direct-examination may be stricken out for lack of cross-examination: Depends on who is at fault: • IF it is on the party presenting the witness – it may be expunged • IF it is on the adverse party - there can be no forfeiture of direct testimony.

It was held that a witness may be cross-examined not only as to any matters stated in the direct examination, but also as to any matter connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Purposes of Cross Examination (1) To discredit the witness (2) To discredit the testimony of the witness (3) To clarify certain matters (4) To elicit admissions from witnesses

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iii.

Re-Direct Examination After the cross-examination, a witness may be reexamined by the party calling him. PURPOSE

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(1) To explain or supplement his answers given during the cross-examination On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.(Sec. 7, Rule 132) Principal Object: To prevent injustice to the witness and the party who has called him by affording an opportunity to the witness: (1) To explain/amplify/reaffirm the testimony which he has given on Cross-E (2) To explain any apparent contradiction or inconsistency in his statements iv.

Re-Cross Examination

Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (Sec. 8 Rule 132) Purpose: To overcome the other party’s attempt to rehabilitate a witness or to rebut damaging evidence brought out on Cross-E It is NOT a Matter of Right on Re-Cross-E for Counsel to Touch on Matters NOT Brought on ReDirect-E Re-Cross-E is limited to new matters brought out on the Re-Direct-E and such matters as may be allowed by the court. Recalling Witness Where all sides in the case have concluded their examination of the witness, his recall for further examination is discretionary with the court as the interest of justice requires. (Sec. 9, Rule 132) GENERAL RULE: After the examination of a witness by both sides has been concluded, the witness, CANNOT be recalled W/O leave of court (Sec.9, Rule 132) EXCEPTION: Where such examination has not been concluded or when a recall of the witness has been expressly reserved – recall is a matter of right. (Remedial Law Compendium Vol. II, Regalado) Leading and Misleading Questions Leading Question - One which suggests to the witness the answer desired. GENERAL RULE: It is not allowed Ratio: It causes the witness to testify in accordance with the suggestion rather than a genuine recollection of events EXCEPTIONS: (1) On cross-examination (2) On preliminary matters

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(3)

(4) (5)

Difficulty in getting direct and intelligible answers (i.e. from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute) Unwilling or hostile witness Adverse party or an officer, director or a corporation or partnership which is an adverse party

Note: For Nos. 3 and 4: There is no need of a preliminary showing of hostility before leading questions can be asked Leading questions have been allowed by the SC when the witness is: immature, aged and infirm, in bad physical condition, uneducated, ignorant unaccustomed to court proceedings, feeble-minded, confused, has slow comprehension, deaf and dumb, unable to speak or understand English. (People v. Dela Cruz, 2002) As a general rule, leading questions are not allowed. However, we have held that when the witness is a child of tender years, it is proper for the court to allow leading questions as it is usually difficult for a child of such age to state facts without prompting or suggestion. Leading questions are necessary to coax the truth out of their reluctant lips. (People v. Del Valle, 2002) Note: A question that merely suggests a subject w/o suggesting an answer or a specific thing is NOT a leading question Misleading Question - One which assumes facts not in evidence or w/o sufficient basis or which assumes testimony or proof which has not been given. – It has little probative value Misleading question is NOT allowed Methods of Impeaching of Adverse Party’s Witness Impeachment of a witness It is a technique usually as part of cross-examination to discredit a witness by attacking his credibility. (Riano) A witness may be impeached by the party against whom he was called. (Sec.11, Rule 132) A Party Can Impeach a Witness of the Adverse Party BY: (1) Contradictory evidence from testimony in same case (2) Evidence of prior inconsistent statement (3) Evidence of bad character and (4) Evidence of bias, interest, prejudice or incompetence (5) Evidence of mental, sensory derangement or defect (6) Evidence of conviction of an offense which affects credibility of witness. (People v. Givera, 2001)

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GENERAL RULE: A party who voluntarily offers the testimony of a witness in the case is, as a rule, bound by the testimony of the said witness. (Remedial Law Compendium Vol. II, Regalado) EXCEPTIONS: (a) In the case of a hostile witness; (b) Where the witness is the adverse party or the representative of a juridical person which is the adverse party; and (c) When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will.(Fernandez vs.Tantoco, 49 Phil. 380; Sec. 11, Rule 76). How the Witness is Impeached by Evidence of Inconsistent Statements (Laying the predicate) The statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (Sec. 13, Rule 132) Contradictory Evidence - refers to other testimony of the same witness, or other evidence presented by him in the same case Prior Inconsistent Statement - refers to statements oral or documentary, made by the witness sought to be impeached on occasions other than trial in which he is testifying. Impeaching done by “laying the predicate”: (1) By confronting him with such statements, with the circumstances under which they were made (2) By asking him whether he made such statements and (3) By giving him as chance to explain the inconsistency

(2)

Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him Evidence of Good Character of a Witness

GENERAL RULE: evidence of good character of witness is not admissible. EXCEPTION: the character of the witness has been impeached. Note: This must be differentiated with the rule related to the accused introducing evidence of his good character and the prohibition on the part of the accused to give evidence of bad character unless as rebuttal by the prosecution. Impeachment of witness by evidence of wrongful acts GENERAL RULE: impeachment of a witness evidence of his particular 
wrongful acts disallowed. EXCEPTION: in relation to his prior conviction of offense through cross-examination and or presenting the record of his prior conviction.

by is an by

Authentication and Proof of Documents A condition precedent for the admissibility of evidence. (Black’s Law Dictionary, 5th Ed., p. 121) Public and Private Documents Classes of Documents Public Documents: A document acknowledged before persons authorized to administer oaths. “Official Documents”. Documents to be public must be: (a) an official written act of a public officer; (b) Notarial Documents (except last wills and testaments) (c) A foreign decision purporting to be the written record of an act of an official body or tribunal of a foreign country is a public writing.

Note: Unless the witness is given the opportunity to explain the discrepancies, the impeachment is incomplete.

Private Documents: all other writings; includes commercial documents.

HOWEVER, such defect is deemed WAIVED if no objection on that ground is raised when the document involved is offered for admission

However, private documents required by law to be entered in public records may be considered as “public documents”

Ratio for Laying the Predicate (1) To avoid unfair surprise to the adversary (2) To save time (an admission will make extrinsic proof unnecessary) (3) To give the witness a chance to explain

Note: 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 w/o authentication.

The “laying the predicate” rule does not apply: (1) If the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, as such statements are in the nature of admissions of said adverse party

For the purpose of their presentation in evidence, certain transactions must be in a public document; otherwise they will not be given any validity. If the record is not kept in the Philippines, such official publication or copy must be accompanied:

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(1)

With a certificate that the attesting officer has the legal custody thereof; (2) Certificate stating, in substance: (a) Copy is a correct copy of the original, or (b) Specific part is a correct copy of the original (3) Certificate issued by: (a) any of the authorized Philippine embassy or (b) consular officials stationed in the foreign country in which the record is kept (4) Authenticated by the seal of his office. (Rotterdam v. Glow Laks Enterprises, Ltd., GR No. 156330, November 19, 2014)

Any other private document need only be identified as that which it is claimed to be.(Sec. 20, Rule 132, Rules of Court) Other Modes Of Authentication (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. When Evidence Of Authenticity Of A Private Writing Is Not Required

Ratio: Not a mere technicality but is intended to justify the giving of full faith and credit to the genuineness of a document in a foreign country Public documents are perfect evidence of the fact which gave rise to their execution and of the date of the latter, if the act which the officer witnessed and certified to or the date written by him are not shown to be false; but they are not conclusive evidence with respect to the truthfulness of the statements made therein by the interested parties. (Dupilas v. Cabacungan, 30 Phil 354, 1917)

As to Authenticity

As to Persons Bound

PUBLIC DOCUMENTS

PRIVATE DOCUMENTS

GENERAL RULE: Admissible in evidence w/o further proof of its genuineness and due execution

NOT Self Authenticating. It must be proved relative to its due execution and genuineness, before it may be received in evidence

EXCEPTION: Where a special rule of law requires proof thereof despite its being a document acknowledged (ex. Probate of notarial wills) Evidence even against 3rd persons, of the fact which gave rise to its due execution and to the date of the latter

Binds only the parties who executed it or their privies, insofar as due execution and date of the document concerned

When a Private Writing Requires Authentication; Proof of Private Writing Due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker.

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An ancient document is said to be in the proper custody if it is in the place in which and under the care of the person with whom it would naturally be.

(1) (2) (3)

Requisites: Document is more than thirty years old Document is produced from a custody in which it would naturally be found if genuine, and Document is unblemished by any alteration or circumstances of suspicion Ratio: The fact of its coming from the natural and proper place tends to remove presumptions of fraud and strengthen the belief of its genuineness By merely producing the document: it establishes prima facie its own authenticity. The burden then shifts to the adverse party to prove otherwise. How To Prove Genuineness Of A Handwriting Means or methods by which the handwriting of a person may be proven, which may be either by: (1) Any witness who believes it to be the handwriting of such person, and has seen the person write; or (2) Any witness who has seen writing purporting to be his upon which the witness has acted or been charge and has thus acquired knowledge of the handwriting of such person, or (3) By comparison made by a witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (Lopez v. CA, L-31494, 23 Jan 1978) Public Documents As Evidence; Proof Of Official Records Requisites: (1) Documents consisting of entries in public records (2) Entries made by a public officer (3) Entries made in the performance of a duty Public documents are admissible without further proof of their due execution and genuineness Proof Of Official Record

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(1) (2)

Whether the Record is Domestic or Foreign – It may be Evidenced By: An official publication A copy thereof duly attested by the proper officers

b. collusion between the parties, or fraud in the party offering the record, in respect to the proceedings. (Sec. 29, Rule 132, Rules of Court) Proof of Notarial Documents

Note: Absent the attestation of the proper officer, a mere copy of the foreign document is not admissible as evidence to prove the foreign law. When the special power of attorney is executed and acknowledged before a notary public or other competent official in a foreign country, it cannot be admitted in evidence UNLESS it is certified as such in accordance with the foregoing provision of the rules by a secretary of 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 of said public document and authenticated by the seal of his office. Attestation of a Copy Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Sec, 25, Rule 132, Rules of Court) Public Record of a Private Document An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (Sec. 27, Rule 132, Rules of Court) Note: 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 w/o authentication. Proof of Lack of Record A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (Sec. 28, Rule 132, Rules of Court) HOW JUDICIAL RECORD IS IMPEACHED Any judicial record may be impeached by evidence of: a. want of jurisdiction in the court or judicial officer,

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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, Rules of Court) Notarial Document One which is duly acknowledged before a notary public. (It is a public document) The notary must be duly authorized and must have notarized said document in accordance with the Notarial Law. Evidentiary Weight Of A Notarial Document A notarial document celebrated with all the legal requisites under a notarial certificate is evidence of a higher character, and to overcome recitals, it is incumbent upon the party challenging it to prove his claim with clear and convincing evidence. A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in his favor the presumption of regularity which may only be rebutted by evidence so strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies on the one contesting the same. (Pan Pacific Industrial Sales Co. v. CA, 2005) How to Explain Alterations in a Document The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (Sec. 31, Rules 132, Rules of Court) The rule requires that a party, producing a writing as genuine but which is found altered after its execution, in a part material to the question in dispute, should account for the alteration, and if he does that, may give the writing in evidence, but not otherwise. In other words, a party presenting the writing should have accounted for the alteration when he introduced the paper in evidence, and not endeavor to explain the alteration afterwards.

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The claim on appeal that the alteration in the writing was innocent, or that the company should have been given an opportunity to explain because it was caught unaware that the court below would take the incident against them as it did, is untenable. (Vda. De Bonifacio v. BLT Bus Co., Inc., 34 SCRA 618, 1970) DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (Sec. 33, Rule 132, Rules of Court) OFFER OF EVIDENCE The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. ( Sec. 34, Rule 132, Rules of Court)

evidence. Such offer shall be done orally unless allowed by the court to be done in writing, (Sec. 35, Rule 132, Rules of Court) When to Make an Offer depending on its form: Testimonial/Oral Documentary and Object Evidence Evidence At the time the witness is After the party has called to testify presented his testimonial evidence, before he rests Oral Evidence is Always Offered only once Offered 2x: Before the witness testified Every time a question is asked of him (implied offer) Procedure Before Documentary and Object Evidence Can be Considered by the Court (1)

Marking To facilitate their identification. May be made during pre-trial or trial.

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. EXCEPTION: If there was repeated reference thereto in the course of the trial by adverse party’s counsel and of the court, indicating that the documents were part of the prosecution’s evidence.

(2)

Identification Proof that the document being presented is the same one referred to by the witness in his testimony

(3)

Authentication Proof of a document’s due execution and genuineness.

Two requisites must concur: (1) The document must have been duly identified by testimony duly recorded. (2) The document must have been incorporated to the records of the case. (Laborate v. Pagsanhan Tourism Consumers Cooperative, 2014)

(4)

Formal Offer After the termination of the testimonial evidence, the proponent will then make a formal offer and state the purpose for which the document is presented. If the evidence is excluded, an offer of proof.

(5)

Objections It is only when the proponent rests his case and formally offers the evidence that an objection may be made. Objection prior thereto is premature

Evidence may be considered despite failure to formally offer if exhibits which were not formally offered by the prosecution were repeatedly referred to in the course of the trial by the counsel of the accused. (People v. Vivencio De Roxas et al., 1962)

To determine whether that piece of evidence should be admitted or not because such evidence may be admissible for several purposes under the doctrine of multiple admissibility.

If there is a stipulation on its due execution and genuineness: (a) Authentication is NOT needed in public documents. (b) Marking and identifying of evidence as an exhibit does NOT mean that it has been offered as part of evidence.

It must be rejected if it is inadmissible for the purpose stated even if it is admissible for another purpose.

Evidence identified and marked as exhibits may be withdrawn before the formal offer thereof or may not at all be offered as evidence.

When to Make an Offer

If they are not formally offered in evidence – such cannot be considered as evidence nor can they be given any evidentiary value.

PURPOSE WHY OFFER MUST BE SPECIFIED

As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a party's testimonial

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Note: The SC has admitted evidence to prove mitigating circumstance even if they are not

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presented or offered in evidence considering the gravity of the offense and the interest of justice. OBJECTION Rules on making an objection: (a) Objection to evidence offered orally must be made immediately after the offer is made. (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, Rules of Court) NOTE: If objections are not made within the time specified, it is deemed waived. Classifications of Objections General Objection Specific Objection It does not go beyond It states why or how the declaring the evidence as evidence is irrelevant or immaterial, incompetent, incompetent. irrelevant or inadmissible. It does not specify the grounds for objection. “Broadside Objection”

Requirements to Exclude Inadmissible Evidence: (1) One has to object to the evidence (2) The objection must be timely made and (3) The grounds for the objection must be specified (specific objections) EFFECT OF GENERAL OBJECTION Failure to specify the grounds is a waiver of objection. BUT when evidence is excluded upon a mere general objection, the ruling will be upheld IF any ground in fact existed for the exclusion.

WHEN TO MAKE OBJECTIONS Offer Time to Object Offered orally Made immediately after the offer is made Question propounded in Made as soon as the the course of the oral grounds thereof shall examination of a witness become reasonably apparent Offer of evidence in W/in 3 days after notice writing of the offer unless a different period is allowed by the court.

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Note: the formal offer of evidence at the time the witness is called to testify is necessary to enable the court to intelligently rule on any objection. (a) Proponent must: Show its evidence, materiality and competence (b) Adverse party must: Promptly raise any objection thereto Note: A document admitted not as an independent evidence but merely as part of the testimony of a witness does NOT constitute proof of the facts related therein. REPETITION OF OBJECTION When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. ( Sec. 37, Rule 132, Rules of Court) Here, the party may just enter a general and continuing objection to the same class of evidence and the ruling of the court shall be applicable to all such evidence of the same class. The court may also motu proprio treat the objection as a continuing one. RULING The ruling of the court must be given: (1) immediately AFTER the objection is made, (2) UNLESS the court desires to take a reasonable time to inform itself on the question presented; (3) but the ruling shall ALWAYS be made: (4) during the trial and (5) 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, Rules of Court) 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 or grounds relied upon. (Sec. 38, Rule 132, Rules of Court) WHEN SHOULD THE RULING BE MADE GENERAL RULE: Parties who object is entitled to a ruling at the time the objection is made. If no ruling is made, it would prejudice the rights of the client since there would be no way of knowing if one would be compelled to meet any evidence. The attorney must inform the court of the lack of ruling – IF NOT: GENERAL RULE: The case cannot be reopened on such ground. The right to object is deemed waived and cannot be raised on appeal.

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EXCEPTION: When there is a serious prejudice on substantial rights – the appellate court may consider it a reversible error. EXCEPTION TO THE EXCEPTION: Unless the parties present a question to which the court desired to inform itself before making its ruling. Here, it is proper for the court to take reasonable time to study the questions. Striking Out of an Answer Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (Sec. 39, rules 132, Rules of Court) MODE OF EXCLUDING INADMISSIBLE EVIDENCE (1) Objection when the evidence is offered (2) Motion to strike out or Expunge – proper in the following cases: • When the witness answers prematurely before there is reasonable opportunity for the party to object (Sec 39) • Unresponsive answers • Answers that are incompetent, irrelevant, or improper (Sec 39) Note: There must be an objection before motion to strike. Tender of Excluded Evidence If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the same and other personal circumstances of the witness and the substance of the proposed testimony. (Sec. 40, Rule 132, Rules of Court)

decision. RATIONALE So that in case of appeal, the appellate court may be able to examine the same and determined the propriety of their rejection Since Documents forming no part of proofs before the appellate court cannot be considered in disposing of the case, otherwise that would infringe upon the constitutional right of the adverse party to due process. It is the better practice to unite with the record exhibits which have been rejected and that such rejected or excluded exhibits should have been permitted by the judge a quo to be attached to the record even if not admitted in evidence, so that in case of an appeal, the court ad quem may thus be able to examine said exhibits and to judge whether or not their rejection was erroneous. (Lamagan v. Dela Cruz, 40 SCRA 101, 1971) WHEN NOT REQUIRED 1) When the question to which an objection has been sustained clearly reveals on its face the substance, purpose and relevancy of the excluded evidence; 2) When the substance, purpose and relevancy of the excluded evidence were made known to the court either in the court proceedings and such parts appear on record; 3) Where evidence is inadmissible when offered and excluded, but thereafter becomes admissible, it must be re-offered unless the court indicates that a second offer would be useless. (Herrera, 1999)

H. JUDICIAL AFFIDAVIT RULE Scope and Where Applicable Rule shall apply to: (a) Actions, (b) Proceedings, or (c) Incidents requiring the reception of evidence (Sec. 1, AM No. 12-8-8 SC) Rule shall applies to all courts, other than the Supreme Court

TENDER OF EXCLUDED EVIDENCE vs. OFFER OF EVIDENCE Tender of Excluded Evidence Only resorted to if admission is refused by the court for purpose of review on appeal

Offer of Evidence Refers to testimonial, documentary or object evidence that are presented in court by a party so that the court can consider his evidence when it comes to the preparation of the

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The rule specifies the following courts and bodies: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC; (2) The Regional Trial Courts and the Shari'a District Courts; (3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts; (4) The investigating officers and bodies authorized by the Supreme Court to receive evidence,

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(5)

including the Integrated Bar of the Philippine (IBP); and The special courts and 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(a), Judicial Affidavit Rule)

Contents and Procedure A judicial affidavit 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, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness; (b) 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; (c) 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; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court; (e) The signature of the witness over his printed name; and (f) 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, AM No. 12-8-8 SC) Application to Criminal Actions Rule: The Judicial Affidavit Rule shall apply to: (1) CRIMINAL CASES ● Where the maximum of the imposable penalty does not exceed six years; or ● Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved (2)

CIVIL CASES ● Irrespective of the penalties involved

Basis: Criminal cases are actions, which require the reception of evidence. (Riano, supra, p. 419) Limitations in the Applicability of the Rule This 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

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(3)

With respect to the civil aspect of the actions, whatever the penalties involved are.

The Judicial Affidavit Rule still applies: (1) The accused opts its application, or (2) With respect to the civil aspect of the criminal action In other cases, the use of the judicial affidavits will now depend on the accused. The rule will apply, irrespective of the penalty involved, where the accused agrees to the use of the judicial affidavits. (RIANO, supra, p. 419) The civil aspect of the criminal action refers to the action to recover the civil liability “arising from the offense charged” and which is deemed instituted with the criminal action as provided in Sec. 1 of Rule 111 of the Rules of Court. (Riano, supra, p. 419-420) Effect of Non-Compliance Party’s failure to submit – deemed to waived their submission of the required judicial affidavits and exhibits. (Note: The Court may allow only once the late submission of the same, provided: 1) the delay is for a valid reason; 2) would not unduly prejudice the opposing party; and, 3) the defaulting party pays a fine not less than P1,000.00 nor more than P5,000.00, at the discretion of the court.) Witness’ failure to appear at the scheduled hearing – Court shall not consider the affidavit. Counsel’s failure to appear at the scheduled hearing – if without valid cause despite notice, he shall be deemed to have waived his client’s right to cross examine the witnesses presented. Non-conformity with the content requirements – Court shall not admit the Judicial Affidavit as evidence. (Sec. 10, AM No. 12-8-8 SC) Effect on Other Rules Provisions which are inconsistent with the Judicial Affidavit Rule: ✔ Repealed or modified - Rules of Court; Rules of procedure of investigating bodies authorized by the Supreme Court ✔ Disapproved - Rules of procedure of governing quasi-judicial bodies (Sec. 11, AM No. 12-8-8 SC)

I.

WEIGHT AND SUFFICIENCY OF EVIDENCE

WEIGHT OF EVIDENCE It is the probative value given by the court to particular evidence admitted to prove a fact in issue. SUFFICIENCY OF EVIDENCE In determining the sufficiency of evidence, what matters is not the number of witnesses but the

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Evidence

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credibility and the nature and quality of their testimonies. The testimony of a lone witness is sufficient to support a conviction if found positive and credible. (Ceniza-Manantan v. People, 2007) ALIBI It is a defense where an accused claim that somewhere else at the time of the commission of the offense. It is one of the weakest defenses an accused may avail because of the facility with which it can be fabricated, just like a mere denial. When this is the defense of the accused, it must be established by clear and satisfactory evidence. (People v. Estrada, 2003) Not all denials and alibis should be regarded as fabricated—indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. (Lejano v. People, 2010) CIRCUMSTANTIAL EVIDENCE Circumstantial evidence is sufficient for conviction if: (1) There are more than one circumstances; (2) The facts from which the inferences are derived are proven; and (3) The combination of all the circumstance is such as to produce a conviction beyond reasonable doubt. The corollary rule is that the circumstances proven must constitute an unbroken chain which leads to one reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. (Trinidad v. People, 2012) EXTRAJUDICIAL CONFESSION NOT SUFFICIENT GROUND FOR CONVICTION An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Sec, 3, Rule 133) CORPUS DELICTI It is the actual commission by someone of the particular crime charged. It refers to the fact of the commission of the crime, not to the physical body of the deceased or to the ashes of a burned building. The corpus delicti may be proven by the credible testimony of a sole witness, not necessarily by physical evidence. (Rimorin v. People, 2003)

PREPONDERANCE OF EVIDENCE Only requires that evidence be greater or more convincing than the opposing evidence. (Duarte v. Duran, 2011) SUBSTANTIAL EVIDENCE Substantial evidence is defined as such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Travelaire & Tours Corp. v. NLRC and Medelyn, 1998) CLEAR AND CONVINCING EVIDENCE Evidence which produces in the mind of the trier of fact firm belief or conviction as to allegations sought to be established(Black’s Law Dictionary, 5th Ed., p. 227) Intermediate than preponderance, but not to the extent of such certainty as is required by beyond reasonable doubt as in criminal cases. (Riano)

J. RULES ON ELECTRONIC EVIDENCE Requisite for admissibility: 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 law. (Sec. 1, Rule 3, Rules on Electronic Evidence) Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document. (Sec. 1, Rule 3) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Sec. 1, Rule 4) Copies and duplicates of the electronic document shall not be admissible to the same extent as the original if: (a) A genuine question is raised as to the authenticity of the original; or (b) In the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. (Sec. 2, Rule 4)

PROOF BEYOND REASONABLE DOUBT Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (Sec. 2, Rule 133)

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Writ of Amparo

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WRIT OF AMPARO A writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.

WRIT OF AMPARO

WHO MAY FILE 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. Note: 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 established herein. VENUE Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. CONTENT OF PETITION The petition shall be signed and verified and shall allege the following: 1. The personal circumstances of the petitioner; 2. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; 3. 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, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; 4. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

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5. 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 6. The relief prayed for. RETURN Respondent shall file within five working days after the service of the writ a verified written return together with supporting affidavits containing: (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 possession to determine the fate or whereabouts of the aggrieved party and the person or persons 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: (i) to verify the identity of the aggrieved party; (ii) 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;

Writ of Amparo

(b) Inspection Order. - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects 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. (d) Witness Protection Order. - The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

(iii) to identify witnesses and obtain statements from them concerning the death or disappearance; (iv) 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; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court. INTERIM RELIEFS 1. Temporary Protection Order. - The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution the protection may be extended to the officers involved.

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Writ of Habeas Data

Habeas Data 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. (A.M. No. 081-16-SC) 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. (Gen. Bautista v. Dannug-Salucon, January 23, 2018)

WRIT OF HABEAS DATA

Who may file General Rule: Aggrieved Party Exception: In cases of extralegal killings or enforced disappearances, any member of the immediate family, or, in default, any ascendant, descendant, or collateral relatives of the aggrieved party within the 4th degree of consanguinity or affinity Venue Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. Enforceability The writ of habeas data shall be enforceable anywhere in the Philippines Contents of the Petition A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.

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In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. Return The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. Hearing The hearing shall be summary. However, the court may call for a preliminary conference to simplify the issues and to explore the possibility of obtaining stipulations and admissions. Appeal Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus and amparo cases. Effect of filing a criminal action When criminal action has been commenced, no separate writ may be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case.

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Environmental Cases

TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) Environmental protection order (EPO) An order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment.

RULES FOR PROCEDURE ON ENVIRONMENTAL CASES

Issuance of a TEPO If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventytwo (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case. 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. Dissolution of a 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.

WRIT OF CONTINUING MANDAMUS 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. Venue of Filing RTC exercising jurisdiction where the actionable neglect or omission occurs Order to Comment

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If the petition is sufficient in form and substance, the court shall issue the writ and require the respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Expediting Proceedings The court in which the petition is filed may issue such orders to expedite the proceedings, and it may also grant a TEPO for the preservation of the rights of the parties pending such proceedings. Judgments If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may submit its comments or observations on the execution of the judgment.

WRIT OF KALIKASAN Nature The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons 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.

Environmental Cases

1.

2.

Ocular Inspection - The court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. Production or inspection of documents or things The court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

Continuing Mandamus Subject Matter Petitioner Respondent

Neglect or exclusion of a law, rule or right Personally aggrieved Government or officers

TEPO

Ancillary Remedy

Venue

RTC, CA, SC

Discovery Measures

None mentioned

Writ of Kalikasan Unlawful act or omission threatening life, health, or property Any person or representative Public or Private Ancillary Remedy CA, SC Ocular inspection/ Production or inspection of documents or things

Venue Supreme Court or Court of Appeals Issuance of the Writ Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order. Prohibited pleadings and motions (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. Discovery Measures

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