121360686 2011 UST Golden Notes Remedial Law

GENERAL PRINCIPLES I. GENERAL PRINCIPLES

7.

Court decisions (Herrera, Vol. I, p. 2, 2007 ed.)

A. CONCEPT OF REMEDIAL LAW Q: What is procedural rule? Q: What is the concept of remedial law? A: It is a branch of public law, which prescribes the procedural rules to be observed in litigations, whether civil, criminal, or administrative, and in special proceedings, as well as the remedies or reliefs available in each case. (2006 Bar Question) Q: What is the importance of remedial law? A: It plays a vital role in the administration of justice. It lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Herrera, Vol. I, p. 1, 2007 ed.) B. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW

A: Procedural rule is the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for their disregard or infraction. Note: If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals merely with procedure (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998).

Q: How are remedial laws implemented in our system of government? A: They are implemented through the judicial system, including the prosecutory service of courts and quasi-judicial agencies. (2006 Bar Question)

Q: Distinguish substantive and remedial law

C. RULE-MAKING POWER OF THE SUPREME COURT

A:

1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT

Substantive Law Remedial Law Part of the law which Refers to the legislation creates, defines or providing means or regulates rights concerning methods whereby causes life, liberty or property or of action may be the powers of agencies or effectuated, wrongs instrumentalities for the redressed and relief administration of public obtained (also known as affairs. Adjective Law). Does not create vested Creates vested rights. rights Retroactive in Prospective in application. application The Supreme Court is expressly empowered to Cannot be enacted by the promulgate procedural Supreme Court. rules. (2006 Bar Question)

Q: What are the principal sources of remedial law? A: 1. 2.

3. 4. 5. 6.

Constitution Different laws creating the judiciary, defining and allocating jurisdiction to courts of different levels Procedural laws and rules promulgated by the Supreme Court Circulars Administrative orders Internal rules

Q: What are the limitations on the rule-making power of the Supreme Court? A: 1.

2. 3.

It shall provide a simplified and inexpensive procedure for the speedy disposition of cases. The rules must be uniform for all the courts of the same grade. The rules must not diminish, increase or modify substantive rights (Cruz, Philippine Political Law, p. 281, 2002 ed.)

2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES Q:

May the Supreme Court suspend the application of the Rules of Court and exempt a case from its operation?

A: Yes. In the interest of just and expeditious proceedings, the Supreme Court may do so because the Rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice. (Republic v. CA, G.R. No. L-31303, May 31, 1978)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 D. NATURE OF PHILIPPINE COURTS 1. MEANING OF A COURT Q: What is a court?

Q: Distinguish Courts of general jurisdiction from special jurisdiction.

A: It is an organ of the government, belonging to the judicial department, whose function is the application of laws to controversies brought before it and the public administration of justice. (Black’s Law Dictionary) 2. COURT AS DISTINGUISHED FROM A JUDGE Q: Distinguish court from a judge Court Entire body in which the judicial power is vested May exist without a present judge Disqualification of a judge does not affect the court

Judge Only an officer or member of the court There may be a judge without a court May be disqualified

3. CLASSIFICATION OF PHILIPPINE COURTS Q: What are the classifications of Philippine courts? A: 1.

2.

3.

5. COURTS OF GENERAL AND SPECIAL JURISDICTION

Regular courts (Supreme Court, Court of Appeals, Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts , Municipal Circuit Trial Courts) Special courts (Sandiganbayan, Court of Tax Appels, Shari'a District Courts, Shari'a Circuit Courts) Quasi-courts or Quasi-judicial agencies (e.g Civil Service Commission)

4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION

A: Courts of General jurisdiction Takes cognizance of all cases , civil or criminal, of a particular nature, or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide on their own jurisdiction

6. CONSTITUTIONAL AND STATUTORY COURTS Q: Distinguish constitutional court from statutory court. A: Constitutional Court Created by the constitution e.g. SC Cannot be abolished by Congress without amending the Constitution

Q: Distinguish Courts of law from equity. A: Courts of Law Any tribunal duly administering the laws of the land

Courts of Equity Any tribunal administering justice outside the law, being ethical rather than jural and belonging to the sphere of morals rather than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. (Herrera, Vol. I, p. 18, 2007 ed.)

Decides a case according to what the promulgated law is

Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

A:

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Courts of Appellate jurisdiction Superior Courts reviewing and deciding cases previously decided by a lower court

Statutory Court Created by law e.g. CTA May be abolished by Congress by just simply repealing the law which created those courts

7. COURTS OF LAW AND EQUITY

Q: Distinguish Courts of original jurisdiction from Courts of appellate jurisdiction.

Courts of Original jurisdiction Courts exercising jurisdiction in the first instance

Courts of Special jurisdiction Takes cognizance of special jurisdiction for a particular purpose, or are clothed with special powers for the performance of specified duties, beyond which they have no authority of any kind

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

GENERAL PRINCIPLES Q: What are courts of record? A: These are courts whose proceedings are enrolled and which are bound to keep written records of all trials and proceedings handled by them. R.A. No. 6031 mandates all Municipal Trial Courts to be courts of record. 8. PRINCIPLE OF JUDICIAL HIERARCHY Q: What is the policy of Judicial Hierarchy or hierarchy of courts? A: A higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts. The Supreme Court is a court of last resort and must so remain if it is to satisfactorily perform assigned to it. (1996 Bar Question) 9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY Q: What is Doctrine of Non-Interference or Judicial Stability? A: Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by another RTC. The principle also bars a court from reviewing or interfering with the judgment of a coequal court over which it has no appellate jurisdiction or power of review. Note: GR: 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. XPN: The doctrine does not apply where a third party claimant is involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 II. JURISDICTION

Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person.

Q: What is jurisdiction? A: A: It is the power and authority of a court to try, hear, and decide a case and to carry its judgments into effect (Latin: “juris” and “dico,” which literally means “I speak of the law”). Q: Is the statement that “Jurisdiction is conferred by substantive law“ accurate? A: No, because only jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties, issues and res is governed by procedural laws. A. JURISDICTION OVER THE PARTIES 1. HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED Q: How is jurisdiction over the plaintiff acquired? A: It is acquired from the moment of filing the complaint, petition or initiatory pleading. 2. HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED Q: How is jurisdiction over the defendant acquired? A: It is acquired either: a. By his voluntary appearance in court and his submission to its authority b. By service of summons c. Other coercive process upon him Note: Jurisdiction over the defendant is not essential in actions in rem or quasi in rem as long as the court has jurisdiction over the res (Herrera, Vol. I, p. 114, 2007 ed.)

B. JURISDICTION OVER THE SUBJECT MATTER 1. MEANING OF JURISDICTION OVER THE SUBJECT MATTER Q: What is jurisdiction over the subject matter?

Jurisdiction Over the Subject Matter Determined by the allegations of the complaint (Riano, Civil Procedure: A Restatement for the Bar, p. 144, 2009 ed.) XPN: Where the real issues are evident from the record of the case, jurisdiction over the subject matter cannot be made to depend on how the parties word or phrase their pleadings (Herrera, Vol. I, p. 2, 2007 ed.) e.g. in ejectment cases in which the defendant averred the defense of the existence of tenancy relationship between the parties (Ibid p.148)

Jurisdiction Over the Person Acquired by the filing of the petition in case of the plaintiff or by arrest (Rule 113), by valid service of summons or voluntary submission to the court’s authority in case of the defendant (Ibid. p. 158)

Note: Tenancy relationship is not presumed and it is not enough that it is alleged. There must be evidence to prove that it exists and that all its elements are established (Salmorin v. Zaldivar, G.R. No. 169691, July 23, 2008).

Conferred by law which may be either the Constitution or a statute (Ibid. p. 143) Cannot be conferred by the agreement of the parties, by contract or by parties’ silence or acquiescence Ibid. p. 144)

It is sometimes made to depend, indirectly at least, on the party’s volition GR: The appearance of the defendant in whatever form is submission to the jurisdiction of the court XPN: If the appearance is to object or question the court’s jurisdiction (Ibid. p. 161) Note: In criminal cases, jurisdiction over the accused is always required

A: 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 hear and determine cases to which the proceeding in question belongs.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION 2. JURISDICTION VERSUS THE EXERCISE OF JURISDICTION Q: Distinguish jurisdiction from exercise of jurisdiction. A: Jurisdiction is the authority to hear and decide cases. On the other hand, exercise of jurisdiction is any act of the court pursuant to such authority, which includes making decisions. 3. ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR OF JUDGMENT

5. DOCTRINE OF PRIMARY JURISDICTION Q: What is Doctrine of Primary Jurisdiction? A: Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge and experience of said tribunal in determining technical and intricate matters of fact (Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).

Q: Distinguish error of jurisdiction from error of judgment.

Q: What is Doctrine of Ancillary Jurisdiction?

A:

A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction.

Error of Jurisdiction One where the court, officer or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion Renders a judgment void or at least voidable Correctible by certiorari There is an exercise of jurisdiction in the absence of jurisdiction

Error of Judgment One that the court may commit in the exercise of jurisdiction; it includes errors of procedure or mistakes in the court’s findings Does not make the court’s decision void Correctible by appeal The court acted with jurisdiction but committed procedural errors in the appreciation of the facts or the law (1989 Bar Question)

4. HOW JURISDICTION IS CONFERRED AND DETERMINED Note: discussion on how jurisdiction is conferred is on page 4.

Q: What are the instances in which jurisdiction cannot be conferred? A: 1. 2. 3. 4. 5.

6.

By the administrative policy of any court; A court’s unilateral assumption of jurisdiction; An erroneous belief by the court that it has jurisdiction; By the parties through a stipulation e.g. contract; The agreement of the parties acquired through, or waived, enlarged or diminished by, any act or omission of the parties; Parties silence, acquiescence or consent (Riano, Civil Procedure: A Restatement for the Bar, p. 143, 11th ed.).

Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, and grant an injunction, attachment or garnishment.

6. DOCTRINE OF ADHERENCE TO JURISDICTION Q: What is Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction? A: GR: Jurisdiction, once attached, cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction from attaching in the first instance, and the court retains jurisdiction until it finally disposes of the case. XPNs: 1. Where a subsequent statute expressly prohibits the continued exercise of jurisdiction; 2. Where the law penalizing an act which is punishable is repealed by a subsequent law; 3. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right; 4. Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5.

6. 7.

When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void; Once appeal has been perfected; Curative statutes (Herrera, Vol. I, p. 106, 2007 ed.).

because it cannot be tolerated by reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L-44888, Feb. 7, 1992). 3.

Q: Does retroactivity of a law affect jurisdiction? A: No. Jurisdiction being a matter of substantive law, the established rule is that statute in force at the time of the commencement of the action determines jurisdiction. (Herrera, Vol. I, p. 105, 2007 ed.) 7. OBJECTIONS TO JURISDICTION OVER THE SUBJECT MATTER Q: What is the effect of lack of jurisdiction over the subject matter? A: When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9). The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.). Q: May jurisdiction of the court be raised or questioned at any time? A: GR: Yes. The prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.). Note: Jurisdiction can be questioned even for the first time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)

XPNs: 1. Estoppel by laches. SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings(Tijam v. Sibonghanoy, G.R. No. L-21450, Apr. 15, 1968). 2.

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Public policy – One cannot question the jurisdiction which he invoked, not because the decision is valid and conclusive as an adjudication, but

A party who invokes the jurisdiction of the court to secure affirmative relief against his opponents cannot repudiate or question the same after failing to obtain such relief (Tajonera v. Lamaroza, G.R. No. L-48907, 49035, Jan. 19, 1982).

Note: Under the Omnibus Motion Rule, a motion attacking a pleading like a motion to dismiss shall include all grounds then available and all objections not so included shall be deemed waived. The defense of lack of jurisdiction over the subject matter is however, a defense not barred by the failure to invoke the same in a motion to dismiss already filed. Even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer, raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule.

Q: Will the failure to exhaust administrative remedies affect the jurisdiction of the court? A: GR: No. It is not jurisdictional but the case will be dismissed on the ground of lack of cause of action. It only renders the action premature. (Carale v. Abarintos, G.R. No. 120704, March 3, 1997; Pestanas v. Dyogi, 81 SCRA 574) XPN: Before a party may be allowed to invoke the jurisdiction of the courts, he is expected to have exhausted all means of administrative redress (Herrera, Vol. I, p. 267, 2007 ed.). XPNS TO THE XPN: 1. Question raised is purely legal; 2. When the administrative body is in estoppels; 3. When the act complained of is patently illegal; 4. When there is need for judicial intervention; 5. When the respondent acted in disregard of due process; 6. When the respondent is the alter-ego of the President, bear the implied or assumed approval of the latter; 7. When irreparable damage will be suffered; 8. When there is no other plain, speedy and adequate remedy;

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION 9.

When strong public interest is involved; and 10. In quo warranto proceedings (Herrera, Vol. I, p. 268, 2007 ed.)

involving the status of the parties or suits involving the property in the Philippines of non-resident defendants. E. JURISDICTION OF COURTS

Note: The rule on exhaustion of administrative remedies and doctrine of primary jurisdiction applies only when the administrative agency exercises quasijudicial or adjudicatory function (Associate Communications and Wireless Services v. Dumalao, G.R. 136762, Nov. 21, 2002).

8. EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION Q: What is the effect of estoppel by failure to object lack of jurisdiction? A: The active participation of a party in a case is tantamount to recognition of that court’s jurisdiction and will bar a party from impugning the court’s jurisdiction. This only applies to exceptional circumstances. (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, Feb. 6, 2007). C. JURISDICTION OVER THE ISSUES Q: What is jurisdiction over the issues? A: It is the power of the court to try and decide issues raised in the pleadings of the parties or by their agreement in a pre-trial order or those tried by the implied consent of the parties. It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings D. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION Q: How is jurisdiction over the res acquired? A: It is acquired either by: 1. The seizure of the property under legal process. 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. (Banco Español Filipino vs. Palanca, 37 Phil. 291). 3. The court by placing the property of thing under its custody (custodia legis). Example: attachment of property. 4. 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

Q: Which court has jurisdiction over the following? A: 1. Boundary dispute between municipalities RTCs are courts of general jurisdiction. Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city of the same province, it follows that RTCs have the power and authority to hear and determine such controversy (Municipality of Kananga v. Madrona, G.R. No. 141375, Apr. 30, 2003). 2. Expropriation It is within the jurisdiction of the RTC because it is incapable of pecuniary estimation. It does not involve the recovery of sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use. 3. Labor dispute An action for damages for abuse of right as an incident to dismissal is within the exclusive jurisdiction of the labor arbiter. But the labor arbiter has no jurisdiction for claims of damages based on quasi-delict which has no reasonable connection with the employeremployee relations claims under the Labor Code (Ocheda v. CA, G.R. No. 85517, Oct. 16, 1992). Note: Where no employer-employee relationship exists between the parties and no issue involved may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the regular courts that has jurisdiction (Jaguar Security Investigation Agency v. Sales, G.R. No. 162420, Apr. 22, 2008).

4. Forcible entry and unlawful detainer The MTC has exclusive original jurisdiction. In such cases, when the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession. All ejectment cases are covered by the Rule on Summary Procedure and are within the jurisdiction of the inferior courts regardless of whether they involve questions of ownership.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 The courts in ejectment cases may determine questions of ownership whenever necessary to decide the question of possession (Gayoso v. Twenty-Two Realty Development Corp., G.R. No. 147874, July 17, 2006; Santiago v. Pilar Development Corp., G.R. No. 153628, July 20, 2006). Authority to conduct administrative investigations over local elective officials and to impose preventive suspension over elective provincial or city officials It is entrusted to the Secretary of Local Government and concurrent with the Ombudsman upon enactment of R.A. 6770. There is nothing in the Local Government Code of 1991 to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act (Hagad v. Dadole, G.R. No. 108072, Dec. 12, 1995).

for reconsideration in accordance with Rule 45 of the Rules of Court (Sec. 27, R.A. 6770). 7. Public school teachers Generally, the Ombudsman must yield to the Division School Superintendent in the investigation of administrative charges against public school teachers (Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008).

5.

6. Appeals involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman It may be appealed to the Supreme Court by filing a petition for certiorari within 10 days from receipt of the written notice of the order, directive or decision or denial of the motion

8. Enforcement of a money claim against a local government unit Commission on Audit (COA) has the primary jurisdiction to pass upon the money claim. It is within the COA's domain to pass upon money claims against the government or any subdivision thereof as provided for under Section 26 of the Government Auditing Code of the Philippines. Courts may raise the issue of primary jurisdiction sua sponte (on its own will or motion; means to act spontaneously without prompting from another party) and its invocation cannot be waived by the failure of the parties to argue it as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties (Euro-Med Laboratories, Phil., Inc. v. Province of Batangas, G.R. No. 148106, July 17, 2006).

1. SUPREME COURT Civil Cases

Criminal Cases Exclusive Original Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari, mandamus against the following: prohibition and mandamus against the following: 1. Court of Appeals 1. Court of Appeals 2. Commission on Elections En Banc 2. Sandiganbayan 3. Commission on Audit 4. Sandiganbayan Appellate 1. In all criminal cases involving offenses from 1. Appeal by petition for review on certiorari: which the penalty is reclusion perpetua or life a. Appeals from the CA; imprisonment and those involving other b. Appeals from the CTA; offenses, which although not so punished c. Appeals from RTC exercising original jurisdiction in arose out of the same occurrence or which the following cases: may have been committed by the accused on i. If no question of fact is involved and the case the same occasion involves: a)

2.

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Constitutionality or validity of treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation b) Legality of tax, impost, assessments, or toll, or penalty in relation thereto c) Cases in which jurisdiction of lower court is in issue ii. All cases in which only errors or questions of law are involved. Special civil action of certiorari – filed within 30 days against the COMELEC / COA

Note: In criminal cases, when the penalty imposed is life imprisonment or reclusion perpetua, appeal is automatic to the CA. (A.M. No. 04-9-05-SC; People v. Mateo y Garcia, G.R. No. 147678-87, July 7, 2004)

2. 3. 4. 5.

Criminal cases in which the death penalty is imposed by the Sandiganbayan Appeals from the CA; Appeals from the Sandiganbayan; Appeals from RTC in which only errors or questions of law are involved.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION

1.

Concurrent With CA Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari, mandamus against the following: prohibition and mandamus against the RTC and a. NLRC under the Labor Code. lower courts. Note: The petitions must first be filed with the CA, otherwise, they shall be dismissed. (St. Martin Funeral Home v. CA, G.R. No. 130866, Sept. 16, 1998).

b. c. d.

Civil Service Commission Quasi-judicial agencies (file with the CA first) RTC and lower courts;

2.

Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). With CA and RTC 1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, 2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts mandamus against the lower courts or other bodies or bodies. With CA, SB and RTC 1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ 2. Petition for writ of habeas data, where the action involves of habeas data public data or government office With RTC With Sandiganbayan Actions affecting ambassadors and other public ministers and Petitions for mandamus, prohibition, certiorari, consuls injunctions and ancillary writs in aid of its appellate jurisdiction including quo warranto arising or that may arise in in cases filed under EO Nos. 1, 2, 14 and 14-A Note: 1.

2.

g. The following cases must be decided by the SC en banc: a. All cases involving the constitutionality of a treaty, international or executive agreement, or law; b. Cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations; c. A case where the required number of vote in a division is not obtained; d. A doctrine or principle laid down in a decision rendered en banc or by division is modified, or reversed; e. All other cases required to be heard en banc under the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution). Environmental laws and regulations covered by the writ of kalikasan includes but not limited to the following: a. Act No. 3572 - Prohibition Against Cutting of Tindalo,Akli, and Molave Trees; b. P.D. No. 705 - Revised Forestry Code; c. P.D. No. 856 - Sanitation Code; d. P.D. No. 979 - Marine Pollution Decree; e. P.D. No. 1067 - Water Code; f. P.D. No. 1151 Philippine Environmental Policy of 1977;

h.

i.

j. k. l. m.

n. o. p. q.

P.D. No. 1433 - Plant Quarantine Law of 1978; P.D. No. 1586 - Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; R.A. 3571 - Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; R.A. 4850 - Laguna Lake Development Authority Act; R.A. 6969 - Toxic Substances and Hazardous Waste Act; R.A. 7076 - People’s Small-Scale Mining Act; R.A. 7586 - National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; R.A. 7611 - Strategic Environmental Plan for Palawan Act; R.A. 7942 - Philippine Mining Act; R.A. 8371 - Indigenous Peoples Rights Act; R.A. 8550 - Philippine Fisheries Code;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

9

UST GOLDEN NOTES 2011 r. s.

3.

R.A. 8749 - Clean Air Act; R.A. 9003 - Ecological Solid Waste Management Act; t. R.A. 9072 - National Caves and Cave Resource Management Act; u. R.A. 9147 - Wildlife Conservation and Protection Act; v. R.A. 9175 - Chainsaw Act; w. R.A. 9275 - Clean Water Act; x. R.A. 9483 - Oil Spill Compensation Act of 2007; y. Provisions in CA No. 141, The Public Land Act; R.A. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. 7160, Local Government Code of 1991; R.A. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. 7308, Seed Industry Development Act of 1992; R.A. 7900, High-Value Crops Development Act; R.A. 8048, Coconut Preservation Act; R.A. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. 9522, The Philippine Archipelagic Baselines Law; R.A. 9593, Renewable Energy Act of 2008; R.A. 9637, Philippine Biofuels Act; and z. Other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources (Sec. 2, Rule 1, A.M. No. 096-8-SC). The following are intra-corporate controversies within the jurisdiction of the RTC: a. Cases involving devises or schemes employed by or any acts, of the board

b.

c.

d.

of directors, business associates, its officers or partnership, amounting fraud or misrepresentation which may be detrimental to the interest of the public and/or the stockholders, partners, members of the associations or organizations registered with the Security and Exchange Commission; Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates, respectively; and between such corporation, partnership or association and the state in so far as it concerns their individual franchise or right to exist as such entity; Controversies in the election or appointments of directors, trustees, officers or managers of such corporation, partnerships or associations; and Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association posses 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 (Sec. 5.2, SRC).

2. COURT OF APPEALS Civil Cases

Criminal Cases Exclusive Original Actions for annulment of judgments of RTC based upon 1. Actions for annulment of judgments of RTC (Sec. 9 extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129). B.P. 129). 2. Crimes of Terrorism under the Human Security Act of 2007 or R.A. 9372 Appellate 1. Final judgments, decisions, resolutions, orders, Judgments or decisions of RTC (except those appealable awards of: to the SC or SB): a. RTC a. exercising its original jurisdiction; i. In the exercise of its original jurisdiction; b. exercising its appellate jurisdiction; and ii. In the exercise of its appellate jurisdiction; c. where the imposable penalty is: b. Family Courts; i. life imprisonment or reclusion perpetua; c. RTC on the questions of constitutionality, ii. a lesser penalty for offenses committed on validity of tax, jurisdiction involving questions of the same occasion or which arose from the fact, which should be appealed first to the CA; same occurrence that gave rise to the offense d. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life which are not a matter of right. imprisonment (Sec. 3, Rule 122). 2. Appeal from MTC in the exercise of its delegated iii. Death (Sec. 10, Rule 122).

10

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION

3. 4. 5. 6.

1. 2.

1. 2.

jurisdiction (R.A. 7691). Appeals from Civil Service Commission; Appeals from quasi-judicial agencies under Rule 43; Appeals from the National Commission on Indigenous Peoples (NCIP); and Appeals from the Office of the Ombudsman in administrative disciplinary cases (Mendoza-Arce v. Office of the Ombudsman, G.R. No. 149148, Apr. 5, 2002). Concurrent With SC 1. Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts. the following: a. NLRC under the Labor Code. b. Civil Service Commission c. Quasi-judicial agencies d. RTCs and other lower courts. 2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). With SC and RTC Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, prohibition Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies. prohibition and mandamus against the lower courts With SC, SB and RTC Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of Petition for writ of habeas data, where the action habeas data involves public data or government office

3. COURT OF TAX APPEALS Tax Cases

Criminal Cases Exclusive Original In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and proper MTC, MeTC and RTC. penalties claimed is less that P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate) Appellate In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or assessments for taxes, fees, charges and penalties where orders of the RTC in tax cases originally decided by the principal amount of taxes and fees, exclusive of them, in their respective territorial jurisdiction, charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments, proper MTC, MeTC and RTC. resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction Concurrent With CIR 1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; 2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial; With RTC Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction; ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

11

UST GOLDEN NOTES 2011 With Commissioner of Customs Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or 2. Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC; With Central Board of Assessment Appeals Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; With Secretary of Finance Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; With Secretary of Trade and Industry and the Secretary of Agriculture Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties. 1.

4. SANDIGANBAYAN Civil Cases

Criminal Cases Exclusive Original Cases involving violations of: 1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices a. EO No. 1 (Creating the PCGG); Act) where one or more of the accused are officials b. EO No. 2 (Illegal Acquisition and occupying the following positions in the government, Misappropriations of Ferdinand Marcos, Imelda whether in permanent. Acting or interim capacity, at the Marcos their close relatives, subordinates, time of the commission of the offense: business associates, dummies, agents or a. Officials occupying a position classified as Grade 27 nominees); or higher of the Compensation and Position c. EO No. 14 [Cases involving the ill-gotten wealth Classification Act of 1989 (R.A. 6758) in the: of the immediately mentioned persons (Marcos i. Executive branch including those occupying and dummies)]; and the position of regional director; and d. EO No. 14-A (amendments to EO No. 14) (Sec. 2, ii. All other national or local officials. R.A. 7975 as amended by R.A. 8294). b. Members of Congress c. Members of the judiciary without prejudice to the Constitution; and d. Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. 2. Felonies or offenses, whether simple or complexed with other crimes committed by the public officials and employees above mentioned in relation to their office; and 3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2, R.A. 7975 as amended by R.A. 8249). Appellate Appeals from final judgments, resolutions or orders of the RTC, whether in the exercise of their original or appellate jurisdiction, in cases involving public officials or employees not otherwise mentioned in the preceding enumeration. Concurrent With SC

Petitions for certiorari, prohibition, mandamus, Petitions for certiorari, prohibition, mandamus, habeas habeas corpus, injunction and other ancillary writs in corpus, injunction and other ancillary writs in aid of its aid of its appellate jurisdiction, including quo appellate jurisdiction, including quo warranto arising in cases warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A. Nos. 1, 2, 14 and 14-A. With SC, CA and RTC Petitions for the issuance of writ of amparo and writ Petitions for the issuance of writ of amparo and writ of of habeas data. habeas data.

Q: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan for

12

accepting a car in exchange for the award of a series of contracts for medical supplies. The

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION Sandiganbayan, after going over the information, found the same to be valid and ordered the suspension of Charles. The latter contested the suspension claiming that under the law (Sec. 13, R.A. 3019), his suspension is not automatic upon the filing of the information and his suspension under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185). The Sandiganbayan overruled Charles’ contention stating that the suspension under the circumstances is mandatory. Is the court's ruling correct?

A: Yes. Charles’ suspension is mandatory, although not automatic. It is mandatory after the determination of the validity of the information in a pre-suspension hearing. The purpose of the suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with evidence or from committing further acts of malfeasance while in office. (2001 Bar Question)

5. REGIONAL TRIAL COURTS Civil Cases

Criminal Cases Exclusive Original 1. Criminal cases not within exclusive jurisdiction of 1. Actions in which the subject of litigation is incapable any court, tribunal or body (Sec. 20, BP 129). of pecuniary estimation; a. Includes criminal cases where the penalty 2. Actions involving title to or possession of real provided by law exceeds 6 years imprisonment property or any interest therein where the assessed irrespective of the fine (R.A. 7691). value exceeds P20,000 or P50,000 in Metro Manila, b. Includes criminal cases not falling within the except forcible entry and unlawful detainer; exclusive original jurisdiction of the 3. Actions in admiralty and maritime jurisdiction where Sandiganbayan where the imposable penalty is demand or claim exceeds P300,000 or P400,000 in imprisonment more than 6 years and none of Metro Manila; the accused is occupying positions classified as 4. Matters of probate, testate or intestate, where gross “Grade 27” and higher (Sec. 4, P.D. 1606 as value of estate exceeds P300,000 or P400,000 in amended by R.A. 8249). Metro Manila; 2. Cases where the only penalty provided by law is a 5. Cases not within the exclusive jurisdiction of any fine exceeding P4,000; court, tribunal, person or body exercising judicial or 3. Other laws which specifically lodge jurisdiction in quasi-judicial function; the RTC: 6. Civil actions and special proceedings falling within a. Law on written defamation or libel; exclusive original jurisdiction of Juvenile and b. Decree on Intellectual Property; Domestic Relations Court and Court of Agrarian c. Violations of Dangerous Drugs Act regardless Reforms; of the imposable penalty except when the 7. Other cases where the demand, exclusive of interest, offender is under 16 and there are Juvenile and damages, attorney’s fees, litigation expenses and Domestic Relations Court in the province. costs, or value of property in controversy exceeds 4. Cases falling under the Family Courts in areas where P300,000 or P400,000 in Metro Manila (Sec. 19, BP there are no Family Courts (Sec.24, B.P. 129). 129 as amended by R.A. 7691); and 5. Election offenses (Omnibus election code) even if 8. Intra-corporate controversies under Sec. 5.2 of the committed by an official with salary grade of 27 or Securities and Regulation Code. higher Concurrent With SC, SB and CA 1. Writ of amparo Petitions for the issuance of writ of amparo and writ of 2. Writ of habeas data habeas data With SC Actions affecting ambassadors and other public ministers and consuls [Sec. 21 (2) of BP 129] With SC and CA 1. Certiorari, prohibition and mandamus against lower courts and bodies; 2. Habeas corpus and quo warranto; With MTC Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC). Special ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

13

UST GOLDEN NOTES 2011 SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec. 23, BP 129). Appellate GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions. XPN: Decisions of lower courts in the exercise of delegated jurisdiction.

Q: What is the test to determine whether an action is capable of pecuniary estimation? A: The criterion is the nature of the principal action or the remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the MTCs or in the RTCs would depend on the amount of the claim.

However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought like specific performance suits and in actions for support, or for annulment of a judgment or foreclosure of mortgage, such actions are incapable of pecuniary estimation, and are cognizable exclusively by the RTCs (Barangay Piapi v. Talip, G.R. No. 138248, Sept. 7, 2005).

6. FAMILY COURTS Civil Cases

1. 2. 3.

4. 5. 6.

7. 8.

Criminal Cases Exclusive Original 1. Where one or more of the accused is/are below 18 Petitions for guardianship, custody of children, habeas years of age but not less than 9 years of age; corpus in relation to minor; 2. When one or more of the victims is a minor at the time Petitions for adoption of children and its revocation; of the commission of the offense (R.A. 8369, Act Complaints for annulment and declaration of nullity of establishing the family courts); marriage and those relating to marital status and 3. Cases against minors cognizable under the Dangerous property relations of spouses or those living together Drugs Act, as amended; and under different status and agreements; and petitions 4. Violations of R.A. 7610 or the Special Protection of for dissolution of conjugal partnership of gains; Children Against Child Abuse, Exploitation and Petitions for support and/or acknowledgment; Discrimination Act, as amended by R.A. 7658; and Summary judicial proceedings under the Family Code 5. Cases of domestic violence against: of the Philippines; a. Women – involving acts of gender-based violence Petitions for declaration of status of children as that result, or likely to result in physical, sexual or abandoned, dependent or neglected children, psychological harm or suffering to women; and petitions for voluntary or involuntary commitment of other forms of physical abuse such as battering or children, the suspension, termination, or restoration of threats and coercion which violate a woman’s parental authority and other cases cognizable under personhood, integrity and freedom of movement; PD 603, EO 56 (Series of 1986) and other related laws; b. Children – which include the commission of all and forms of abuse, neglect, cruelty, exploitation, Petitions for the constitution of the family home violence and discrimination and all other (rendered unnecessary by Art. 153, Family Code) (Sec. conditions prejudicial to their development (Sec. 5, R.A. 8369). 5, R.A. 8369)

7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS Civil Cases

Criminal Cases

Exclusive Original 1. Actions involving personal property where the value of the 1. property does not exceed P300,000 or, in Metro Manila P400,000; 2. Actions for claim of money where the demand does not 2. exceed P300,000 or, in Metro Manila P400,000; 3. Probate proceedings, testate or intestate, where the value of the estate does not exceed P300,000 or, in Metro Manila P400,000; 3. Note: In the foregoing, claim must be exclusive of interest, damages, attorney’s fees, litigation expense, and costs (Sec. 33, BP 129 as amended by R.A. 7691).

14

4.

All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine and regardless of other imposable accessory or other penalties; In offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000 (Sec. 32, BP 129 as amended by R.A. 7691); Where the only penalty provided by law is a fine not exceeding P4,000 (Admin. Circular No. 09-94, June 14, 1994); and Those covered by the Rules on Summary Procedure, i.e.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION 4. Actions involving title to or possession of real property or any interest therein where the value or amount does not exceed P20,000 or, in Metro Manila P50,000 exclusive of interest damages, attorney’s fees, litigation expense, and costs; (2008 Bar Question) 5. Maritime claims where the demand or claim does not exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP 129 as amended by R.A. 7691); 6. Inclusion or exclusion of voters (Sec. 138, BP 881); 7. Those covered by the Rules on Summary Procedure: a. Forcible entry and unlawful detainer; b. Other civil cases except probate where the total amount of the plaintiff’s claims does not exceed P100,000 or, in Metro Manila P200,000 exclusive interest and costs (as amended by A.M. No. 02-11-09-SC). 8. Those covered by the Rules on Small Claims, i.e. actions for payment of money where the claim does not exceed P100,000 exclusive of interest and costs.

a.

Violations of traffic laws, rules and regulations; b. Violations of the rental law; c. Violations of municipal or city ordinances; d. Violations of BP 22 (A.M. No. 00-11-01-SC); e. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1,000 irrespective of other penalties or civil liabilities arising therefrom. 5. All offenses committed by public officers and employees in relation to their office, including government-owned or –controlled corporations, and by private individuals charged as co-principals, accomplices or accessories, punishable with imprisonment not more than 6 years or where none of the accused holds a position classified as “Grade 27” and higher (Sec. 4, P.D. 1606 as amended by R.A. 8249). Delegated

Cadastral or land registration cases covering lots where: a. There is no controversy or opposition; b. Contested but the value does not exceed P100,000 (Sec. 34, BP 129 as amended by R.A. 7691). Note: The value shall be ascertained by the affidavit of the claimant or agreement of the respective claimants (Sec. 34, BP 129 as amended by R.A. 7691).

Special Petition for habeas corpus in the absence of all RTC judges in Application for bail in the absence of all RTC judges in the province or city (Sec. 35, BP 129). the province or city. Concurrent With RTC Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).

8. SHARIAH COURTS Exclusive Original 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 estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property; 3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws; 4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and 5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. Concurrent With all civil courts 1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum; 2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and 3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

15

UST GOLDEN NOTES 2011 F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION Katarungang Pambarangay Law To effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. (Preamble of P.D. 1508) (1999 Bar Qestion) 1.

2.

3.

4.

For disputes between residents of the same barangay: the dispute must be brought for settlement in the said barangay. For disputes between residents of different but adjoining barangays and the parties agree to submit their differences to amicable settlement: within the same city or municipality where any of the respondents reside at the election of the complainant. For disputes involving real property or any interest when the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon therein shall be brought in the barangay where the real property or larger portion thereof is situated. For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located.

All disputes involving parties who actually reside in the same city or municipality may be the subject of the proceedings for amicable settlement in the barangay.

16

Rule on Small Claims Cases Purpose / Object To provide a simpler and more inexpensive and expeditious means of settling disputes involving purely money claims than the regular civil process

1. 2. 3. 4.

Where to file Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts

Rules on Summary Procedure To achieve an expeditious and inexpensive determination of the cases defined to be governed by the Rules on Summary Procedure

1. 2. 3. 4.

Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts

Cases Covered Civil Cases Small claims cases – civil claims 1. All cases of forcible entry and which are exclusively for the unlawful detainer irrespective of payment or reimbursement of a the amount of damages or unpaid sum of money not exceeding rentals sought to be recovered. P100,000 exclusive of interest and Where attorney’s fees are costs, either awarded, the same shall not 1. Purely civil in nature where exceed P20,000; and the claim or relief prayed for 2. All other civil cases, except by the plaintiff is solely for probate proceedings, where the payment or reimbursement of total amount of plaintiff’s claim sum of money, or does not exceed P100,000 or 2. The civil aspect of criminal does not exceed P200,000 in actions, either filed before the Metro Manila, exclusive of institution of the criminal interests and costs (A.M. No. 02action, or reserved upon the 11-09-SC, Nov. 25, 2005). filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION These claims or demands may be: 1. For money owed under any of the following: a. Contract of Lease b. Contract of Loan c. Contract of Services d. Contract of Sale e. Contract of Mortgage 2. For damages arising from any of the following: a. Fault or negligence b. Quasi-contract c. Contract 3. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 Criminal Cases When punishable by imprisonment of not more than 1 year or fine of not more than 5,000. (Sec. 408, LGC)

1.

2.

3.

4. 5.

6.

Where one party is the government or any subdivision or instrumentality thereof; Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; Offenses where there is no private offended party; Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties

1. Violations of traffic laws, rules and regulations; 2. Violations of the rental law; 3. Violations of municipal or city ordinances; 4. Violations of B.P. 22 or the Bouncing Checks Law (A.M. No. 00-11-01-SC, Apr. 15, 2003); 5. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1,000 irrespective of other penalties or civil liabilities arising therefrom; and 6. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding P10,000. 1.

2.

Cases excluded Criminal actions are excluded pursuant to certain Constitutional limitations granting the accused in all criminal prosecutions “the right to be heard by himself and counsel” (Sec. 14[2], Bill of Rights). An example is a case for libel or slander. However, the civil aspect of a criminal action which seeks recovery of money as damages may be heard as a small claim if reserved or instituted separately prior to the filing of the criminal case. Some civil cases regardless of how little the amount involved cannot be filed as small claims. Examples are a suit to force a person to fix a damaged good or a demand for the fulfillment of an

This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

7.

8.

thereto agree to submit their differences to amicable settlement by an appropriate lupon; Such other classes of disputes which the President of the Philippines may determine in the interest of justice; and Violations of R.A. 9262, VAWC Act.

obligation which is not purely for money.

G. TOTALITY RULE Q: What is the Aggregate or Totality Rule? A: Where there are several claims or causes of actions between the same or different parties embodied in one complaint, the amount of the demand shall be the totality of the claims in all causes of action irrespective of whether the causes of action arose out of the same or different transaction (Rule 2, Sec.5 [d]).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE III. CIVIL PROCEDURE A. ACTIONS 1. MEANING OF ORDINARY CIVIL ACTIONS Q: What is an ordinary civil action? A: It is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by law. It is governed by ordinary rules. 2. MEANING OF SPECIAL CIVIL ACTIONS Q: What is a special civil action? A: It has special features not found in ordinary civil actions. It is governed by ordinary rules but subject to specific rules prescribed Rules 62-71. 3. MEANING OF CRIMINAL ACTIONS Q: What is a criminal action? A: It is one by which the state prosecutes a person for an act or omission punishable by law (Sec.3 (b), Rule1). 4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS Q: Distinguish action from special proceeding. A: Action

Special Proceeding Purpose Civil action: To establish a status, a right 1. To protect a right or a particular fact (Sec. 3 2. Prevent or redress a Rule 1). Specific kinds of wrong. special proceedings are found in rule 72 – rule 109 Criminal action: E.g. settlement of estate, Prosecute a person for escheat, guardianship, etc. an act or omission (Riano, Civil Procedure: A punishable by law (Sec. Restatement for the Bar, p. 3, Rule 1) 121, 2009 ed.) Application Where a party litigant Where his purpose is to seeks to recover seek the appointment of a property from another, guardian for an insane his remedy is to file an person, his remedy is a action. special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. (Herrera, Vol. I, p. 370, 2007 ed.) Governing Law Ordinary rules Special rules supplemented supplemented by special by ordinary rules rules

Court Heard by courts of limited jurisdiction Procedure Initiated by a pleading Initiated by a petition and and parties respond parties respond through an through an answer opposition Heard by courts of general jurisdiction

5. REAL ACTIONS AND PERSONAL ACTIONS Q: Distinguish real actions from personal actions. A: Real Action

Personal Action Scope When it affects title to or Personal property is possession of a real sought to be recovered property, or an interest or where damages for therein (Sec. 1, rule 4) breach of contract are sought Basis When it is founded upon the Founded on privity of privity of a real estate. That contract such as means that realty or interest damages, claims of therein is the subject matter money, etc. of the action. Note: It is important that the matter in litigation must also involve any of the following issue: 1. Title to 2. Ownership 3. Possession 4. Partition 5. Foreclosure of mortgage 6. Any interest in real property.

Venue Venue of action shall be Venue of action is the commenced and tried in the place where the proper court which has plaintiff or any of the jurisdiction over the area principal plaintiffs wherein the real property resides or any of the involved, or a portion defendants resides, at thereof is situated. (Rule 4, the election of the sec 1) plaintiff (Rule 2 sec 2) Example An action to recover Action for a sum of possession of real property money plus damages Note: An action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property (Emergency Loan Pawnshop, Inc. vs. Court of appeals, 353 SCRA 89; Riano, p. 122, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 6. LOCAL AND TRANSITORY ACTIONS Q: Distinguish local action from transitory actions. A: Local Action

Transitory Action Venue Must be brought in a Dependent on the place particular plac where the where the party resides subject property is regardless of where the located, unless there is cause of action arose. an agreement to the Subject to Sec. 4, Rule 4 contrary.

Privity of contract No privity of contract and Founded on privity of the action is founded on contract between the privity of estate only parties whether debt or covenant (Paper Industries Corporation of the Philippines v. Samson, G.R. No. L-30175, Nov. 28, 1975). Example Action to recover real Action to recover sum of property money

7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM Q: Distinguish actions in rem, in personam and quasi in rem A: Action In Rem

Action In Personam Action Quasi In Rem Nature A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of of such persons to the discharge of personal rights and obligations the named defendant or his interests the claims assailed. brought against the person therein to the obligation or lien burdening the property. Purpose A proceeding to determine the state An action to impose a Deals with the stauts, ownership or or condition of a thing responsibility or liability upon liability of a particular property but a person directly which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants. (Domagas vs. Jensen, 448 SCRA 663) Scope Directed against the thing itself Directed against particular Directed against particular persons Directed against the whole world persons Required jurisdiction Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the defendant is not required. the defendant is required defendant is not required as long as Jusrisdiction over the RES is required jurisdiction over the res is acquired through publication in a newspaper of general circulation. Effect of judgment Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the world. parties impleaded or their litigants, privies, successor in interest successors-in-interest but the judgment shall be executed against a particular property. The RES involve will answer the judgment. Example 1. Probate proceeding 1. Action for specific 1. Action for partition 2. Cadastral proceeding performance 2. Action to foreclose real estate 3. Land registration proceeding 2. Action for breach of mortgage attachment contract 3. Action for ejectment 4. Action for a sum of money; for damages (Riano, Civil Procedure: A Restatement for the Bar,p.130, 2009 ed.)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE B. CAUSE OF ACTION

3. FAILURE TO STATE A CAUSE OF ACTION

1. MEANING OF CAUSE OF ACTION

Q: Distinguish failure to state cause of action from absence or lack of cause of action

Q: What is a cause of action? A: A: It is the act or omission by which a party violates a rights of another (Sec. 2, Rule 2). 2. CAUSE OF ACTION VERSUS RIGHT OF ACTION Q: Distinguish cause of action from right of action A: Cause of Action It is the act or omission by which a party violates the rights of another ( Sec. 2, Rule 2)

Right of Action Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Requisites 1. The existence of a 1. There must be a good legal right of the cause (existence of a plaintiff cause of action) 2. A correlative duty of 2. A compliance with all the defendant to the conditions precedent respect one’s right to the bringing of the 3. An act or omission of action the defendant in 3. The action must be violation of the instituted by the proper plaintiff’s right. party. Nature It is actually predicated It is procedural in on substantive law or character is the on quasi delicts under consequence of the NCC. violation of the right of the plaintiff (Riano, Civil Procedure: A Restatement for the Bar , p. 4, 2009 ed.) Basis Based on the allegations Basis is the plaintiff’s cause of the plaintiff in the of action complaint Effect of Affirmative defense Not affected by Affected by affirmative affirmative defenses defenses (fraud, prescription, estoppel, etc.) Note: The rule is “There is no right of action where there is no cause of action”. (Ibid p.4)

Failure to state cause of action Insufficiency in the allegations of the complaint

Lack of cause of action

Failure to prove or establish by evidence one’s stated cause of action As a ground for dismissal Raised in a motion to Raised in a demurrer to dismiss under Rule 16 evidence under Rule 33 before a responsive after the plaintiff has pleading is filed rested his case Determination Determined only from Resolved only on the basis the allegations of the of the evidence he has pleading and not from presented in support of his evidentiary matters claim

4. TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION Q: What is the test of sufficiency of the statement of a cause of action? A: 1.

Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Coop., Inc. vs. David, 468 SCRA 63; Riano, p. 92, 2009 ed.)

2.

The sufficiency of the statement of cause of action must appear on the face of the complaint and its existence is only determined by the allegations of the complaint (Viewmaster Construction Corp. vs. Roxas, 335 SCRA 540; Riano, Civil Procedure: A Restatement for the Bar, p. 93, 2009 ed)

Note: The truth or falsity of the allegations is beside the point because the allegations in the complaint are hypothetically admitted. Thus a motion to dismiss on the ground of failure to state a cause of action, hypothetically admits the matters alleged in the complaint (Riano, Civil Procedure: A Restatement for the Bar, p92, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS Q: What is splitting a cause of action? A: It is the act of instituting two or more suits on the basis of the same cause of action (Sec. 4, Rule 2). It is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is a ground for the dismissal of others. The rule against splitting of a cause of action aims to avoid multiplicity of suits, conflicting decisions and unnecessary vexation and harassment of defendants. It applies not only to complaints but also to counterclaims and crossclaims. (1999 Bar Question) Note: An action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry (Progressive Development Corporation, Inc. vs. CA, 301 SCRA 637; Riano, Civil Procedure: A Restatement for the Bar, p. 108, 2009 ed.)

Q: What are the rules on splitting a single cause of action?

Note: When the causes of action accrue in favor of the same plaintiff and against the same defendant, it is not necessary to ask whether or not the causes of action arose out of the same transaction or series of transactions. Also a joinder of causes of action is only permissive not compulsory, hence a party may desire to file a single suit for each of his claims.

Q: Is misjoinder of causes of action a ground for dismissal? A: No. A misjoined cause of action may, on motion of a party or on initiative of the court, be severed and proceeded with separately (Sec. 6 Rule 2). Q: The complaint filed before the RTC states two causes of actions, one for rescission of contract and other for the recovery of 100, 000.00 both of which arose out of the same transaction. Is the joinder of the two causes of action proper? A: Yes. Both are ordinary civil actions and thus, neither requires special rules. Since the action for rescission falls under the jurisdiction of the RTC, the joinder may be made in said court provided the venue lies therein (Sec. 5, Rule 2; 1996 Bar Question; Riano, Civil Procedure: A Restatement for the Bar, p.120, 2009 ed.)

A: C. PARTIES TO CIVIL ACTIONS

1. Prohibited by the Rules of Court. “A party may not institute more than one suit for a single cause of action.” (Sec.3, Rule 2) 2. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. (Mariscal vs. Court of Appeals, 311 SCRA 51)

1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS Q: What are the kinds of parties in a civil action?

6. JOINDER AND MISJOINDER OF CAUSES OF ACTION

A: 1. 2. 3. 4. 5. 6.

Q: What is a joinder of causes of action? A: It is the assertion of as many causes of action a party may have against another in one pleading alone (Sec. 5, Rule 2). Note: Joinder of causes of action must be subject to the following conditions: 1. The party shall comply with the rules on joinder of parties; 2. The joinder shall not include special civil actions governed by special rules; 3. Where causes of action pertain to different venues, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies therein 4. Where claims in all causes of action are for recovery of money, the aggregate amount claimed shall be the test for jurisdiction. (Sec 5, Rule 2)

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Real parties in interest Indispensable parties Representatives as parties Necessary parties Indigent parties Pro-forma parties

Q: Who is a real party in interest? A: He is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit (Sec. 2 Rule 3). Q: Distinguish an indispensable party from a necessary party. A: Indispensable Parties Parties in interest without whom no final determination can be

Necessary Parties A necessary party is one who is not indispensable but who ought to be joined as a

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE had of an action shall be joined either as plaintiffs or defendants. (Sec.7, Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano, Civil Procedure: A Restatement for the Bar, p. 224, 2009 ed.) No valid judgment if they are not joined Note: In the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present (Riano, Civil Procedure: A Restatement for the Bar, p. 221, 2009 ed.)

party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (Sec.8, Rule 3) Note: Should be joined whenever possible, the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p.224)

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined Note: Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-compliance with the said order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239, 2001 ed.) Note: Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, Rule 3)

Q: May a party sue the defendants in the alternative? A: Yes. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them in the alternative, although a

right to relief against one may be inconsistent with a right to relief against the other (Sec. 13, Rule 3). Q: May an action be prosecuted in the name of other party other than the real party in interest? A: No. Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3). Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be a real party-in-interest (Sec.3 Rule 3; Riano, p. 219, 2009 ed.) Note: 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.

Q: Who is an indigent party? A: He is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. (Sec. 21 Rule 3) Note: Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from payment of legal fees. (Sec. 19, Rule 141).

Q: What is the rule on indigent litigants? A: If the applicant for exemption meets the salary and property requirements under Sec. 19, Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the “indigency test” under Sec. 21, Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Algura v. LGU of Naga, G.R. No. 150135, Oct. 30, 2006). Note: While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered (Sec. 21, Rule 3).

Q: What does the authority include, if one is authorized as an indigent party? A: An exemption from the payment of: 1. Docket fees and other lawful fees

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

Transcript of stenographic notes. (Sec. 21, Rule 3)

Note: The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless otherwise provided (Sec. 21, Rule 3). The basis for the exemption from legal and filing fees is the free access clause embodied in Sec. 11, Art. III, 1987 Constitution. (Re: Query of Mr. Roger C. Prioreschi re exemption from legal and filing fees of The Good Shepherd Foundation, Inc., A.M. No. 09-6-9SC, Aug. 19, 2009)

Q: Who is a pro forma party? A: One who is joined as a plaintiff or defendant, not because such party has any real interest in the subject matter or because any relief is demanded, but merely because the technical rules of pleadings require the presence of such party on the record. (Samaniego vs. Agulia, G.R. No. 125567, June 27, 2000) 2. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES

and allows the amendment of the complaint at any stage of the proceedings, through motion or on order of the court on its own initiative (Sec. 11, Rule 3; Republic v. Sandiganbayan, G.R. No. 152154, July 15, 2003). However, when the order of the court to implead an indispendable party goes unheeded, the court may order the dismissal of the case. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when, among others, he does not comply with the order of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No. 166519; Riano, Civil Procedure: A Restatement for the Bar p. 223, 2009 ed.) 4. CLASS SUIT Q: What is a class suit? A: It is an action where one or some of the parties may sue for the benefit of all if the requisites for said action are complied with. (Riano, Civil Procedure: A Restatement for the Bar, p. 236, 2009 ed.) Q: What are its requisites? A: 1.

Q: When is there a compulsory joinder of parties? A: The joinder of parties becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of indispensable parties, (Riano, Civil Procedure: A Restatement for the Bar, p. 222, 2009 ed.) Q: What are the requisites of permissive joinder of parties? A: 1.

2. 3.

Right to relief arises out of the same transaction or series of transactions (connected with the same subject matter of the suit); There is a question of law or fact common to all the plaintiffs or defendants; and Joinder is not otherwise provided by the provisions of the Rules on jurisdiction and venue (Sec. 6, Rule 3).

3. MISJOINDER AND NON-JOINDER OF PARTIES Q: Is the misjoinder or non-joinder of an indispensable party a ground for the dismissal of the action or annulment of judgment? A: No. The Rules prohibit the dismissal of a suit on the ground of non-joinder or misjoinder of parties

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2.

3.

4.

Subject matter of the controversy is one of common or general interest to many persons; Parties affected are so numerous that it is impracticable to bring them all before the court; Parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned (Sec. 12 Rule 3); and Representatives sue or defend for the benefit of all (Sec.12, Rule 3)

5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY Q: What is the rule on suits against entities without juridical personality? A: 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 names and addresses of the persons composing said entity must all be revealed (Sec. 15, Rule 3). Note: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Question)

6. EFFECT OF DEATH OF PARTY LITIGANT Q: What is the effect of the death of a party upon a pending action? A: 1.

2.

3.

Purely personal – the death of either of the parties extinguishes the claim and the action is dismissed. Not purely personal – claim is not extinguished and the party should be substituted by his heirs, executor or administrator. In case of minor heirs, the court may appoint a guardian ad litem for them. Action for recovery of money arising from contract and the defendant dies before entry of final judgment – it shall not be dismissed but instead shall be allowed to continue until entry of judgment. A favorable judgment obtained by the plaintiff shall be enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3, 1999 Bar Question)

Note: The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. (Riano, Civil Procedure: A Restatement for the Bar, p. 232, 2009 ed.) If there is notice of death, the court should await appointment of legal representative; otherwise, subsequent proceedings are void.

D. VENUE 1. VENUE VERSUS JURISDICTION Q: Distinguish venue from jurisdiction. A: Venue The place, or geographical area where an action is to be filed and tried. May be waived by: 1. Failure to object through a motion to dismiss or through an affirmative defense. 2. Stipulation of the parties. Procedural May be changed by the written agreement of the parties

Jurisdiction Power of the court to hear and decide a case

Establishes a relation between plaintiff and defendant, or petitioner and respondent. GR: Not a ground for a motu proprio dismissal XPN: In cases subject to summary procedure.

It is a ground for a motu proprio dismissal. (Riano, Civil Procedure: A Restatement for the Bar, p. 210, 2009 ed.)

Q: Can a complaint be dismissed by the court motu proprio based on improper venue? A: No. Improper venue is not one of the grounds wherein the court may dismiss an action motu proprio. (Universal Corp. vs. Lim, G.R. No. 154338, Oct. 5, 2007). Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised. (Dacuycuy vs. Intermediate Appellate Court, 195 SCRA 641) 2. VENUE OF REAL ACTIONS Q: What is the venue of real actions? A: The venue is local, hence the venue is the place where the real property involved or, any portion thereof, is situated (Sec. 1, Rule 4). 3. VENUE OF PERSONAL ACTIONS Q: What is the venue of personal actions? A: The venue is transitory, hence the venue is the residence of the plaintiff or defendant at the option of the plaintiff. (Sec. 3, Rule 4). 4. VENUE OF ACTIONS AGAINST NON-RESIDENTS Q: Where should the action be commenced and tried if the defendant is a non-resident? A: 1.

Defendant does not reside and is found in the Philippines: a. Personal actions – shall be commenced and tried in the court of the place where the plaintiff resides b. Real actions – shall be commenced and tried in the court of the place where the property is located.

2.

Defendant does not reside and is not found in the Philippines:

Cannot be waived

Substantive Cannot be the subject of the agreement of the parties. (2006 Bar

Establishes a relation between the court and the subject matter.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

25

UST GOLDEN NOTES 2011 a.

b.

If the action affects the personal status of the plaintiff – the action may be commenced and tried in the court of the place where the plaintiff resides. If it involves any property of the nonresident defendant – the action may be commenced and tried where the property or any portion thereof is situated (Sec. 3, Rule 4).

2. 3. 4. 5. 6.

Solely Exclusively in this court In no other court save – Particularly Nowhere else but/except

Q: When is stipulation on venue void? A: It is void and unenforceable when it is contrary to public policy (Sweet Lines v. Teves, G.R. No. 28324, Nov. 19, 1978)

5. WHEN THE RULES ON VENUE DO NOT APPLY Q: In what instances does the rule on venue of action inapplicable? A: 1.

2.

In cases where a specific rule or law provides otherwise (e.g. an action for damages arising from libel). Where the parties have validly agreed in writing before the filing of the action on the exclusive venue (Sec. 4, Rule 4).

6. EFFECTS OF STIPULATIONS ON VENUE Q: What is rule on the stipulations on venue? A: The parties may agree on a specific venue which could be in a place where neither of them resides (Universal Robina Corp. vs. Lim, 535 SCRA 95). The parties may stipulate on the venue as long as the agreement is in writing, made before the filing of the action, and exclusive. (Sec.4[b], Rule 4) Q: What makes a stipulation on venue exclusive? A: Venue is exclusive when the stipulation clearly indicates, through qualifying and restrictive words that the parties deliberately exclude causes or actions from the operation of the ordinary permissive rules on venue and that they intended contractually to designate a specific venue to the exclusion of any other court also com petent and accessible to the parties under the ordinary rules on venue of actions (Philippine Banking Corp. v. Tensuan, G.R. No. 106920, Dec. 10, 1993) Note: A stipulation that the parties agree to sue and be sued in the courts of Manila is not restrictive or exclusive to prevent the filing of the suit in the places provided for by the rules (Riano, Civil Procedure: A Restatement for the Bar, p. 205, 2009 ed.)

Q: What are examples of words with restrictive meanings? A: 1.

26

Note: When the action is no longer based on the agreement but on the tortuous act of sending collection telegrams despite the fact that the obligation had already been paid, venue is no longer based on the written stipulation but at the election of the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No. L-58080, Feb. 15, 1982)

E. PLEADINGS Q: What are pleadings? A: Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec.1, Rule 6) Note: Pleadings cannot be oral because they are clearly described as “written” statements. (Riano, Civil Procedure: A Restatement for the Bar, p. 51, 2009 ed.)

1. KINDS OF PLEADINGS Q: What are the kinds of pleadings? A: 1. 2. 3. 4. 5. 6.

Complaint Counterclaim Cross-claim Third party claim Reply Answer a. COMPLAINT

Q: What is a complaint? A: It is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action, with a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable. Note: A pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated. (Sec. 3, Rule 6)

Only REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE b. ANSWER Q: What is an answer? A: It is the pleading where the defendant sets forth his affirmative or negative defenses (Sec. 4 Rule 6). It may likewise be the response to a counterclaim or a cross-claim. Note: An answer Is a compulsory pleading. This pleading may be an answer to the complaint, an answer to counter claim or an answer to a cross-claim (Riano, Civil Procedure: A Restatement for the Bar, p. 323, 2009 ed.)

(1) NEGATIVE DEFENSES (2) NEGATIVE PREGNANT (3) AFFIRMATIVE DEFENSES Q: What are the two kinds of defenses that may be set forth in the answer? A: 1.

2.

Affirmative defenses – allegation of a new matter which while hypothetically admitting the material allegations in the pleading would nevertheless prevent or bar recovery by the claiming party. It is in the nature of confession and avoidance Negative defenses – specific denial of the material facts or facts alleged in the pleading essential to establish the plaintiff’s cause of action (Sec. 5, Rule 6).

Q: What are insufficient denials or denials amounting to an admission? A: 1. 2.

General denial Denial in the form of a negative pregnant

Q: What is negative pregnant? A: A denial which does not qualify as a specific denial. It is conceded to be actually an admission (Riano, Civil Procedure: A Restatement for the Bar, p. 327, 2009 ed.). It is a form of denial which, at the same time, involves an affirmative implication favorable to the opposing party. It is in effect an admission of the averment to which it is directed. It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. (Regalado, Remedial Law Compendium, Vol. I, p. 177, 2005 ed.) Note: Where a fact is alleged with some qualification or modifying language and the denial is conjunctive, a negative pregnant exists, and only the qualification or modification is denied, while the fact itself is admitted.

A denial in a form of negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied (Galofa v. Nee Bon Sing, G.R. No. L-22018, Jan. 17, 1968).

c. COUNTERCLAIMS Q: What is counterclaim? A: It is any claim which a defending party may have against an opposing party (Sec. 6, Rule 6). It partakes of a complaint by the defendant against the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No. 118192, Oct. 23, 1997) Note: The filing of counterclaim gives rise to complaints, namely, the one filed by plaintiff by way of original complaint and the one filed by defendant by way of a counterclaim (Riano, Civil Procedure: A Restatement for the Bar, p.330, 2009 ed.) A counterclaim may be asserted against an original counter-claimant and a cross-claim may also be filed against an original cross-claimant. (Sec.9, Rule 6)

(1) COMPULSORY COUNTERCLAIM (2) PERMISSIVE COUNTERCLAIM Q: Distinguish the two kinds of counterclaim. A: Compulsory Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim (Sec.7, Rule 6) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Barred if not set up in the action (Sec. 2, Rule 9) Need not be answered; No default Not an initiatory pleading.

Need not be accompanied by a certification against forum shopping and certificate to file action

Permissive Counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered,: Otherwise, default Initiatory pleading. (Riano, Civil Procedure: A Restatement for the Bar, p. 336, 2009 ed.) Must be accompanied by a certification against forum shopping and whenever required by law, also a certificate to

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

27

UST GOLDEN NOTES 2011 by the Lupong Tagapamayapa.

The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6; Ibid p.331)

file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007 Bar Question). Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise, defendant will have to file it in separate proceeding which requires payment of docket fee

Note: A plaintiff who fails or who chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint (Gojo v. Goyala, G.R. No. 26768, Oct. 30, 1970). In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6).

(3) EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED Q: What is the effect of the dismissal of a complaint on the counterclaim?

the right of the defendant to prosecute his counterclaim in the same or separate action (Sec. 3, Rule 17; Riano, Civil Procedure: A Restatement for the Bar, p. 340, 2009 ed.) Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000 as damages and P30,000 as attorney's fees as a result of the baseless filing of the complaint, as well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe. Suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? A: Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the complaint would also bring about the dismissal of his counterclaims but he can file a separate action for his permissive counterclaims. The compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. v. Forbes Park Association, Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar Question) d. CROSS-CLAIMS

A: 1.

2.

3.

28

If no motion to dismiss has been filed, any of the grounds for dismissal under rule 16 may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16). After hearing, when the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal shall be limited to the complaint. It shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17). When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up, the dismissal is without prejudice to

Q: What are the requirements for a cross-claim? A: 1. 2. 3.

A claim by one party against a co-party; It must arise out of the subject matter of the complaint or of the counterclaim; and The cross-claimant is prejudiced by the claim against him by the opposing party. (Sec. 8, Rule 6)

Q: What is the effect if a cross-claim was not set up? A: GR: Barred if not set up. (Sec.2, Rule 9) XPN: If it is not asserted through oversight, inadvertence, or excusable negligence, it may still be set up with leave of court by amendment of the pleadings. (Sec.10, Rule 11)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS

Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968).

Q: What is a third (fourth, etc.) party complaint? A: A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec.11, Rule 6) Q: Distinguish a third-party complaint from the rules on bringing in new parties. A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action. Whereas in bringing in new parties, if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under the rules on bringing in new parties Q: Why is leave of court necessary in third (fourth, etc.) -party complaint? A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be located; or unnecessary issues may be introduced; or the introduction of a new and separate controversy. (Herrera, Vol. I, p. 705, 2007 ed.) Q: What are the tests to determine whether the third-party complaint is in respect of plaintiff’s claim? A: 1.

2.

3.

Whether it arises out of the same transaction on which the plaintiff’s claim is based, or, although arising out of another or different transaction, is connected with the plaintiff’s claim; Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim.

Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central

A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June 30, 1977). Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional party. Thus, a defendant has no vested right to file a third party complaint (China Banking Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).

Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full payment, Abby went after UNICAP’s debtor Ben. Ben is a policy holder of Insular. The court’s sheriff then served a notice of garnishment to Insular over several account receivables due to Ben. Insular refused to comply with the order alleging adverse claims over the garnished amounts. The trial court ordered Insular to release to Abby the said account receivables of Ben under the policies. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. The CA gave due course to the petition and annulled the order of the trial court. Is the Court of Appeals correct? A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a thirdparty claim. Since the third-party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. The rights of a thirdparty claimant should be decided in a separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22, 2006). f. COMPLAINT-IN-INTERVENTION Q: What is a complaint-in-intervention? A: An intervention pleading filed for the purpose of asserting a claim against either or all of the original parties. g. REPLY Q: Is the filing of a reply necessary? A: GR: No.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

29

UST GOLDEN NOTES 2011 Note: If a party does not file such reply. All the new matters that were alleged in the answer are deemed controverted (Sec. 10, Rule 6)

XPNs: 1. Where the answer alleges the defense of usury in which case a reply under oath should be made. Otherwise, the allegation of usurious interest shall be deemed admitted. 2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the document shall be deemed admitted. 2. PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES ON SUMMARY PROCEDURE

3. PARTS OF A PLEADING a. CAPTION Q: What should the caption contain? A: The caption sets forth the name of the court, the title of the action, and the docket number if assigned. (Sec. 1, Rule 7) Q: What should the title of the caption indicate? A: It should indicate the names of the parties. They shall all be named in the original complaint or petition but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. (Sec. 1, Rule 7) b. SIGNATURE AND ADDRESS

Q: What are the pleadings allowed in a summary procedure?

Q: What is the rule regarding the signature and address?

A:

A: The complaint must be signed by the plaintiff or counsel representing him indicating his address. This address should not be a post office box. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action (Sec. 3, Rule 7)

1. 2. 3. 4.

Complaint Compulsory counterclaim Cross-claims pleaded in the answer Answer to these pleadings (Sec. 3, Rules on Summary Procedure; Riano, p. 177, 2009 ed.)

Q: What are the prohibited pleadings, motions and petitions in small claims? A: 1.

Motion to dismiss the complaint except on the ground of lack of jurisdiction. 2. Motion for a bill of particulars. 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial. 4. Petition for relief from judgment. 5. Motion for extension of time to file pleadings, affidavits, or any other paper. 6. Memoranda. 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court. 8. Motion to declare the defendant in default. 9. Dilatory motions for postponement. 10. Reply. 11. Third-party complaints. 12. Interventions. (Sec.14 of A.M. No. 08-8-7SC)

30

c. VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING Q: How are pleadings verified? A: It is verified by an affidavit. This affidavit declares that the: 1. Affiant has read the pleading; and 2. Allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7) Q: Is verification necessary in pleadings? A: No, except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (Sec. 4, Rule 7)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What is the significance of verification?

2.

A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A Restatement for the Bar, p. 60, 2009 ed.) 3. Q: What are the pleadings that should be verified? A: The following should be verified: 1. Petition for relief from judgment 2. Petition for review from the RTCs to the CA 3. Petition for review from the CTA and quasi-judicial agencies to the CA 4. Appeal by certiorari from the CA to the SC 5. Petition for annulment of judgments or final orders and resolutions 6. Complaint for injunction 7. Application for appointment of receiver 8. Application for support pendente lite 9. Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions 10. Petition for certiorari, prohibition, mandamus, quo warranto 11. Complaint for expropriation 12. Complaint for forcible entry or unlawful detainer 13. Petition for indirect contempt 14. Petition for appointment of general guardian 15. Petition for leave to sell or encumber property of an estate by a guardian 16. Petition for the declaration of competency of a ward 17. Petition for habeas corpus 18. Petition for change of name 19. Petition for voluntary judicial dissolution of a corporation; 20. Petition for correction or cancellation of entries in Civil Registry. (1996 Bar Question)

It does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005) and noncompliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471, Feb. 5, 2007) The absence of verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co., Inc. v. NLRC, G.R. No. 112650, May 29, 1997)

Q: What is the nature of the certification against non-forum shopping? A: It is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief (Sec. 5, Rule 7). This rules applies as well to special civil actions since a since rules for ordinary civil action are suppletory (Riano, Civil Procedure: A Restatement for the Bar, p. 63, 2009 ed.). Q: Who executes certification against forumshopping? A: It is the plaintiff or principal party who executes the certification under oath (Sec. 5, Rule 7). It must be signed by the party himself and cannot be signed by his counsels. (Digital Microwave Corp. v. CA, G.R. No. 128550, Mar. 16, 2000). It is the plaintiff who is in the best position to know whether he or it actually filed or caused the filing of a petition. (Far Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1, 1998) Q: What are the undertakings of a party under the certification against forum shopping? A:

Q: What are the effects of lack of verification?

1.

That the party has not commenced or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending

2.

That if there is such other pending action or claim, a complete statement of the present status thereof

A: 1.

A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence, it produces no legal effect (Sec. 3, Rule 7)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

31

UST GOLDEN NOTES 2011 3.

That if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule 7)

filing of the certification 14 days before the dismissal of the petition. In Uy v. LandBank, supra, the Court had dismissed Uy’s petition for lack of verification and certification against nonforum shopping. However, it subsequently reinstated the petition after Uy submitted a motion to admit certification and nonforum shopping certification. In all these cases, there were special circumstances or compelling reasons that justified the relaxation of the rule requiring verification and certification on nonforum shopping.

Q: What is the effect of non-compliance with the rule on certification against forum shopping? A: It is not curable by mere amendment and shall be a cause for the dismissal of action (Sec.5, Rule 7). Note: When the case is dismissed due to noncompliance with the certification, filing fees cannot be recovered.

Q: Is substantial compliance allowed by the courts? A: GR: No. The rule is that the certificate of nonforum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one of them is insufficient.

Q: What is the effect of non-compliance with the undertakings? A: It has the same effect as the submission of false certification. Hence, such failure shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions. (Sec. 5 Rule 7).

XPN: However, the Court has also stressed that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. The rule of substantial compliance may be availed of with respect to the contents of the certification. This is because the requirement of strict compliance with the provisions regarding the certification of nonforum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. It does not thereby interdict substantial compliance with its provisions under justifiable circumstances. (Cavile v. Heirs of Clarita Cavile, 448 Phil 302, 2003)

Q: What is the effect of submission of a false certification? A: It shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions (Sec. 5, Rule 7) Q: What is the effect of willful and deliberate forum shopping of the party or his counsel? A: It shall be a ground for summary dismissal. This dismissal is with prejudice and shall constitute direct contempt as well as cause for administrative sanctions (Sec. 5, Rule 7). Q: Is belated filing allowed by the courts?

Q: When should the rule on forum shopping be invoked?

A: GR: No. The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. XPN: In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification. In Loyola v. Court of Appeals, et al. (245 SCRA 477 [1995]), the Court considered the filing of the certification one day after the filing of an election protest as substantial compliance with the requirement. In Roadway Express, Inc. v. Court of Appeals, et al. (264 SCRA 696 [1996]), the Court allowed the

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A: GR: It should be raised at the earliest opportunity in a motion to dismiss or a similar pleading. Note: Invoking it in the later stages of the proceedings or on appeal may result in the dismissal of the action which invokes forum shopping.

XPNs: It may be invoked in the later stages only if the violation arises from or will result in: 1. The loss of jurisdiction over the subject matter

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 2. 3. 4.

The pendency of another action between the same parties for the same cause Barring of the action by a prior judgment The Statute of Limitations has been crossed (Young v. Keng Seng, G.R. No.143464, Mar. 5, 2003).

Q: Mayor Miguel, Mayor of City Koronadal, filed an action against RD Corporation for the annulment of the deed of absolute sale over several real properties of City of Koronadal alleging irregularities thereto with the RTC. The said deed of absolute sale was authorized by Mayor Miguel’s predecessor, Mayor de Jesus. The RTC dismissed the petition because the certification against forum shopping was signed by the City Legal Officer of City of Koronadal and not by Mayor Miguel. Is the RTC correct? A: Yes. It is the mayor, not the City Legal Officer, who has the authority to file suits for the recovery of funds and property on behalf of the city even without the prior authorization from the Sanggunian. Here, Mayor Miguel had the authority to institute the action against RD Corporation. However, being the proper party to file such suits, Mayor Miguel must necessarily be the one to sign the certification against forum-shopping, and not the City Legal Officer, who, despite being an official of the City, was merely its counsel and not a party to the case (City of Caloocan v. CA, G.R. No. 145004, May 3, 2006). (1) REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING

A: No. When the petitioner in a case is a corporation, the certification against forum shopping should be signed by its duly authorized director or representative. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. A proof of said authority must be attached with the certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006). d. EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING Q: What is the effect of lawyer’s signature? A: The signature of counsel constitutes: 1. A certificate by him that he has read the pleadings; 2. That to the best of his knowledge, information and belief there is good ground to support it; and 3. That it is not interposed for delay. (Sec. 3, Rule 7) 4. ALLEGATIONS IN A PLEADING a. MANNER OF MAKING ALLEGATIONS Q: What is the rule when making a pleading? A: Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts. (Sec. 1, Rule 6) Q: What are Ultimate facts?

Q: What is the rule when the plaintiff is a juridical person? A: The certification against forum shopping where the plaintiff is a juridical entity like a corporation, may be executed by properly authorized person. This person may be a lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification, such may be signed by the authorized lawyer (National Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A Restatement for the Bar, p. 70, 2009 ed.) Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of corporation XYZ, signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. Is the certification against forum shopping valid? If not, how may it be cured?

A: They refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. (Ceroferr Realty Corporation vs. Court of Appeals, 376 SCRA 144) (1) CONDITION PRECEDENT Q: What is condition precedent? A: It refers to matters which must be complied with before a cause of action arises. (Riano, Civil Procedure: A Restatement for the Bar, p. 97, 2009 ed.) Q: What is the rule on conditions precedent? A: When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading. Otherwise it will be a ground for dismissal

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 for failure to state a cause of action. Such as tender of payment before consignation, prior resort to barangay conciliation when necessary, and etc (Riano, Civil Procedure: A Restatement for the Bar, p. 97, 2009 ed.). (2) FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS Q: What is the rule in making averments of fraud or mistake? A: The circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8). The complaint must state with particularity the fraudulent acts of the adverse party. These particulars would necessarily include the time, place, and specific acts of fraud committed against him (Riano, Civil Procedure: A Restatement for the Bar, p. 98, 2009 ed.).

Q: How are actionable documents pleaded? A: By setting forth: 1. The substance of such document in the pleading and attaching said document thereto as an exhibit 2. Said document verbatim in the pleading (Sec. 7, Rule 8). Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the document annexed are controlling.

c. SPECIFIC DENIALS Q: What are the kinds of specific denial? A: 1.

Q: What is the rule in making averments of malice, intent, knowledge or other conditions of the mind of a person? A: The circumstances constituting such may be averred generally (Sec.5, Rule 8). Q: What is the rule in pleading an official document or act? A: It is sufficient to aver that the document was issued in compliance with law. With respect to an act, it is likewise sufficient to allege that the act was done also in compliance with law (Sec.9, Rule 8; Riano, Civil Procedure: A Restatement for the Bar, p. 98, 2009 ed.). b. PLEADING AN ACTIONABLE DOCUMENT Q: What is an actionable document? A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc. vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a sum of money. (Riano, Civil Procedure: A Restatement for the Bar, p. 101, 2009 ed.) Note: This manner of pleading a document applies only to an actionable document, i.e., one which is the basis of an action or a defense. Hence, if a document does not have the character of an actionable document, it need not be pleaded strictly in the manner prescribed by the rules (Ibid p.102)

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2.

3.

Absolute denial – defendant specifies each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Partial denial – defendant denies only a part of an averment. In this kind he shall specify so much of it as is true and material and shall deny only the remainder. Disavowal of knowledge – defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint.

(1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS Q: What is the effect of failure to make specific denial? A: Material averments except as to the amount of unliquidated damages, not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34 (Riano, Civil Procedure: A Restatement for the Bar, p. 324, 2009 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE (2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH

6. DEFAULT

Q: When is a specific denial must be coupled with an oath?

a. DECLARATION OF DEFAULT Q: When is a declaration of default proper?

A: 1. A denial of an actionable document (Sec. 8, Rule 8) 2. A denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8)

A: If the defending party fails to answer within the time allowed therefor, the court shall upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default (Sec. 3, Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.)

5. EFFECT OF FAILURE TO PLEAD a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS Q: May defenses not pleaded in a motion to dismiss or in the answer still be raised? A: GR: No, they are deemed waived. XPNs: These defenses may be raised at any stage of the proceedings even for the first time on appeal (Tijam v. Sibonghanoy, G.R. No. L21450, Apr. 15, 1968): 1. Lack of jurisdiction over the subject matter;

Q: In what situations where declaration of default is proper? A: It is proper in 3 situations: 1. Defendant did not file any answer or responsive pleading despite valid service of summons; 2. Defendant filed an answer or responsive pleading but beyond the reglementary period; and 3. Defendant filed an answer to the court but failed to serve the plaintiff a copy as required by the Rules. b. EFFECT OF AN ORDER OF DEFAULT

Note: It may however, be barred by laches.

Q: What are the effects of an order of default? 2. 3. 4.

Litis pendentia; Res judicata; and Statute of limitations (Sec. 1, Rule 9)

A: 1.

b. FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND CROSS-CLAIM 2. Q: May a compulsory counterclaim or cross-claim not set up in the answer still be raised subsequently? A: GR: A compulsory counterclaim or cross-claim not set up in the answer is deemed barred (Sec. 2, Rule 9). XPN: If the compulsory counterclaim or crossclaim is an after-acquired counterclaim, that is, such claim matured after filing of the answer, it may be pleaded by filing an amended answer or a supplemental answer or pleading (Sec. 9, Rule 11).

3.

c. RELIEF FROM AN ORDER OF DEFAULT Q: What are the reliefs from an order of default? A: 1.

Note: Counterclaims or cross-claims omitted through oversight, inadvertence, or excusable neglect or when justice requires may be set up by amendment before judgment. Leave of court is necessary (Sec. 10, Rule 11).

The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial [Sec. 3(a), Rule 9]; While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings [Sec. 3 (a), Rule 9]. It is submitted that he may participate in the trial, not as a party but as a witness; and A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000).

After notice of order and before judgment – The defendant must file a verified motion to set aside the order of default upon proper showing that:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 a.

b.

2.

3.

4.

His failure to answer was due to fraud, accident, mistake or excusable negligence; and That he has a meritorious defense. [Sec. 3(b), Rule 9] (2000 & 1999 Bar Question)

f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED Q: When is default not allowed? A: 1. 2.

After judgment and before judgment becomes final and executory – He may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law (Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009) After the judgment becomes final and executory – he may file a petition for relief from judgment under Rule 38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) (2006, 1998 Bar Question) Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992)

3.

Actions for annulment; Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and In special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed.

7. FILING AND SERVICE OF PLEADINGS Q: What papers are required to be filed and served? A: Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (Sec.4, Rule 13) a. PAYMENT OF DOCKET FEES Q: What is the significance of paying the docket fees? A: A complaint is not considered filed unless the proper amount of the docket fee is paid. Thus, if the proper docket fee is not paid, the period of prescription continues to run. b. FILING VERSUS SERVICE OF PLEADINGS

d. EFFECT OF A PARTIAL DEFAULT Q: What is filing? Q: What is the effect of partial default? A: It is the act of presenting the pleading or other paper to the clerk of court. (Sec. 2, Rule 13)

A: GR: The court will try the case against all defendants upon the answer of some. XPN: Where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer e.g. forgery. (1995 Bar Question) e. EXTENT OF RELIEF

Q: What is service? A: It is the 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. (Sec. 2, Rule 13)

Q: What is the extent of relief? A: The judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages [Sec. 3(d), Rule 9]. However, if the court orders submission of evidence, unliquidated damages may be awarded based on such.

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c. PERIODS OF FILING OF PLEADINGS Q. When should a responsive pleading be filed? A:

Answer to an original complaint

Periods for Filing an Answer Within 15 days after service of summons,

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

Defendant is a foreign private juridical entity and has a resident agent Defendant is a foreign private juridical entity and has no resident agent but has an agent / officer in the Philippines Defendant is a foreign private juridical entity and has no resident agent nor agent/ officer. (Summons to be served to SEC which will then send a copy by registered mail within 10 days to the home office of the foreign private corporation) Service of summons by publication

Non-resident defendant to whom extraterritorial service of summons is made Answer to amended complaint (Matter of right)* Answer to amended complaint (Not a matter of right)* Counterclaim or crossclaim Third (fourth, etc.) party complaint

Supplemental complaint

unless a different period is fixed by the court (Sec. 1, Rule 11). Within 15 days after service of summons (Sec.6, in relation to Sec.5[a], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21) Within 15 days after service of summons to said agent or officer (Sec.6, in relation to Sec.5[b], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21) Within 30 days after receipt of summons by the home office of the foreign private entity

d. MANNER OF FILING Q: What are the modes of filing? A: 1.

2.

By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court; or By sending them through registered mail (Sec. 3, Rule 13)

Note: Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission.

e. MODES OF SERVICE Q: What are the modes of service?

A: 1. 2. Within the time specified in the order which shall not be less than 60 days after notice (Sec. 15, Rule 14) Not be less than 60 days after notice (Sec. 15, Rule 14) Within 15 days from service of amended complaint (Sec. 3. Rule 11) Within 10 days counted from notice of the court order admitting the same (Sec. 3, Rule 11) Within 10 days from service (Sec. 4, Rule 11) Like an original defendant – 15, 30, 60 days as the case may be (Sec. 5; Regalado, Vol. I, p. 212, 2005 ed.) Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 7, Rule 11)

Note: 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)

3.

Personal service (Sec. 6, Rule 13); Service by registered mail (Sec. 7, Rule 13); or Substituted service (Sec. 8, Rule 13). (1) PERSONAL SERVICE

Q: How is personal service done? A: By: 1. 2.

3.

Delivering personally a copy to the party or his counsel; Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein if no person found in his office, or if his office is unknown, or if he has no office (Sec. 6, Rule 13). (2) SERVICE BY MAIL

Q: How is service by mail done? A: 1.

By depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered; or

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (Sec. 7, Rule 13).

2.

3.

(3) SUBSTITUTED SERVICE Q: How and when is substituted service made? 4. A: 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).

(7) PROOF OF FILING AND SERVICE Q: What are the proofs of filing? A: GR: Filing is proven by its existence in the record of the case.

(4) SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS

XPN: If it is not in the record, and: 1. If filed personally – proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same; or 2. If filed by registered mail – proved by the registry receipt and the affidavit of the person who did the mailing with a full statement of: a. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court; b. With postage fully paid; and c. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. (Sec. 12, Rule 13)

Q: How is service of judgment of final orders or resolutions done? A: By: 1. 2. 3.

Service by ordinary mail – upon expiration of 10 days after mailing, unless the court otherwise provides. 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). Substituted service – at the time of such delivery (Sec. 8, Rule 13).

Personal service; Registered mail; or Publication, if party is summoned by publication and has failed to appear in the action (Sec. 9, Rule 13)

Note: No substituted service.

(5) PRIORITIES IN MODES OF SERVICE AND FILING Q: What are the priorities in modes of service and filing?

Q: What are the proofs of service? A: GR: Whenever practicable, the service and filing shall be done personally.

A: 1.

XPN: With respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally (Sec. 11, Rule 13) 2. Note: A violation of this rule may be cause to consider the paper as not filed (Sec. 11, Rule 13).

(6) WHEN SERVICE IS DEEMED COMPLETE Q: When is service deemed complete? A: 1.

Personal service – upon actual delivery.

3.

Proof of personal service: a. Written Admission of the party served; or b. Official return of the server or c. Affidavit of the party serving, containing the date, place and manner of service. Proof of service by ordinary mail: a. Affidavit of mailer showing compliance of Sec. 7, Rule 13; and b. Registry receipt issued by the mailing officer (Sec. 13, Rule 13) Registered mail: a. Affidavit; and b. Registry receipt issued by the mailing office.

Note: The registry return card shall be filed immediately upon its receipt by the sender, or in lieu

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (Sec. 13, Rule 13)

Q: What is a notice of lis pendens? A: In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Note: Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. (Sec.14, Rule 13)

8. AMENDMENT Q: How are pleadings amended? A: By: 1. 2.

Note: Plaintiff may amend his complaint even if the same was dismissed on motion of the defendant provided that the dismissal order is not yet final. (Arranz vs. Manila Surety and Fidelity Co., Inc., L128441, June 30, 1960)

c. FORMAL AMENDMENT Q: What is the rule on formal amendments? A: A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party (Sec. 4, Rule 10). d. AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE Q: When may amendment be made to conform to or authorize presentation of evidence? A: 1.

Adding or striking out an allegation or the name of any party; or Correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect (Sec. 1, Rule 10)

Note: Failure to amend does not affect the result of the trial of said issue.

2.

a. AMENDMENT AS A MATTER OF RIGHT Q: When is amendment considered as a matter of right? A: It is considered as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served (Sec. 2, Rule 10). Note: A motion to dismiss is not a responsive pleading and its filing does not preclude the exercise of the plaintiff’s right to amend his complaint. (Riano, p. 246, 2009 ed.

b. AMENDMENTS BY LEAVE OF COURT Q: When is leave of court required? A: 1. 2.

If the amendment is substantial (Sec. 3, Rule 10); and A responsive pleading had already been served (Siasoco v. CA, G.R. No. 132753. Feb. 15, 1999) (1994 Bar Question)

When issues not raised by the pleadings are tried with the express or implied consent of the parties.

Amendment may also be made to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. 5, Rule 10).

e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS Q: Distinguish an amended pleading from a supplemental pleading. A: Amended Pleading Refer to the facts existing at the time of filing of original pleading Supersedes the original May be amended without leave of court before a responsive pleading is filed. Amendment must be appropriately marked.

Supplemental Pleading Refers to facts occurring after the filing of the original pleading. Merely supplements the original pleading. Always with leave of court

There is no such requirement in supplemental pleadings (Herrera, Vol. I, p. 854,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2007 ed.)

f. EFFECT OF AMENDED PLEADING Q: What is the effect of an amended pleading? A: An amended pleading supersedes the pleading it amends. However, admissions in the superseded pleading can still be received in evidence against the pleader. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived (Sec. 8, Rule 10). F. SUMMONS 1. NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM AND QUASI IN REM Q: What is the nature of summons? A: It is the writ by which the defendant is notified of the action brought against him (Gomez vs. Court of Appeals, G.R. No. 127692, March 10, 2004). An important part of that notice is a direction to the defendant that he must answer the complaint within a specified period, and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2, Rule 14). (Riano, p. 411 , 2005 ed.) Q: What are the purposes of summons? A: 1.

2.

Actions in personam a. To acquire jurisdiction over the person of the defendant; and b. To give notice to the defendant that an action has been commenced against him (Umandap v. Sabio, Jr., G.R. No. 140244, Aug. 29, 2000) Actions in rem and quasi in rem – not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004). 2. VOLUNTARY APPEARANCE

Note: Voluntary appearance cures the defect in the service of summons.

XPN: Special appearance in court to challenge its jurisdiction over the person of the defendant and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance (Sec. 20, Rule 15; La Naval Drug Corp. v. CA, G.R. No. 103200, Aug. 31, 1994). 3. PERSONAL SERVICE Q: When is personal service of summons proper? A: Only if the suit is one strictly in personam. The service of summons must be made by service in person on the defendant. This is effected by handing a copy of the summons to the defendant in person, or if he refuses to receive it, by tendering the copy of the summons to him (Sec. 6, Rule 14). (Riano, p. 423 , 2005 ed.) 4. SUBSTITUTED SERVICE Q: When is substituted service of summons proper? A: In our jurisdiction, for substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of service of summons in person within a reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient age and discretion in the same place as the defendant or some competent person in charge of his office or regular place of business (Sabio, Jr., 339 SCRA 243 [2000]; Hamilton vs. Levy, G.R. No. 139283, November 15, 2000). (Riano, p. 427 , 2005 ed.) 5. CONSTRUCTIVE SERVICE (BY PUBLICATION) Q: Is leave of court required in constructive service of summons? A: This service always requires permission of the court.

Q: What is the effect of voluntary appearance before the court? Explain. A: GR: The defendant’s voluntary appearance shall be equivalent to service of summons and the consequent submission of one’s person to the jurisdiction of the court (Sec. 20, Rule 14).

40

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE a. SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN b. SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES Q: When is constructive service of summons proper? A: 1.

2.

Service upon a defendant where his identity is unknown or where his whereabouts are unknown. When the defendant is designated as an unknown and cannot be ascertained by diligent inquiry, Sec. 14, Rule 14 allows service of summons by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Riano, p. 432 , 2005 ed.) Service upon residents temporarily outside the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines (Sec. 16, Rule 14).

6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED Q: When is extra-territorial service of summons allowed?

by any other manner the court may deem sufficient. (Riano, p. 439-440, 2005 ed.)

7. SERVICE UPON PRISONERS AND MINORS Q: How is service of summons upon prisoner made? A: Service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (Sec. 9, Rule 14) Q: How is service of summons upon minors made? A: Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (Sec. 10, Rule 14) 8. PROOF OF SERVICE Q: How is proof of service done? A: It shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec 18, Rule 14). Q: How is proof of service by publication done?

A: The defendant must be a non-resident defendant who is at the same time not found in the Philippines at the time summons is to be served. In addition, the action commenced against him must be any of the following: 1. 2.

3.

4.

An action that affects the personal status of the plaintiff; An action that relates to, or the subject of which is the property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent; An action in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; An action where the property of the defendant has been attached in the Philippines.

A: It is done through the following: 1. Affidavit of the printer, his foreman or principal clerk, business or advertising manager, to which affidavit a copy of the publication shall be attached; and 2. Affidavit showing the deposit of a copy of the summons and order for publication in the post office (Sec. 19, Rule 14). G. MOTIONS 1. MOTIONS IN GENERAL a. DEFINITION OF A MOTION Q: What is a motion? A: It is an application for relief other than by a pleading. (Sec. 1, Rule 15)

Note: In any of the above instances, extraterritorial service is permissible with leave of court and may be effected by personal service, summons by publication or ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

41

UST GOLDEN NOTES 2011 b. MOTIONS VERSUS PLEADINGS Q: What is the rule on hearing of motions? Q: Distinguish a motion from a pleading. A: GR: Every written motion shall be set for hearing by the applicant. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15).

A: A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a complaint, counterclaim, cross-claim, third-party complaint, or complaint-in-intervention, answer or reply (Sec. 2, Rule 6). A motion on the other hand is an application for relief other than a pleading(Sec. 1, Rule 15).

e. OMNIBUS MOTION RULE Q: What is the Omnibus Motion Rule? A:

c. CONTENTS AND FORMS OF MOTIONS Q: Should a motion be in writing? A:

GR: All available grounds for objection in attacking a pleading, order, judgment, or proceeding should be invoked at one time; otherwise, they shall be deemed waived (Sec. 8, Rule 15).

GR: Yes. XPN: Those made in open court or in the course of hearing or trial (Sec. 2, Rule 15). Q: What are the contents of a motion? A: The contents of a motion are: 1. the relief sought to be obtained; 2. the ground upon which it is based; and 3. if required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (Sec. 3, Rule 15) Q: May a motion pray for judgment? A: GR: No. XPN: Motion for: 1. judgment on the pleadings; 2. summary judgment; or 3. Judgment on demurrer to evidence. d. NOTICE OF HEARING AND HEARING OF MOTIONS

XPN: The court may dismiss the case motu proprio based on: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Barred by statute of limitations (Sec. 1, Rule 9) f. LITIGATED AND EX-PARTE MOTIONS Q: What is a litigated motion? A: It is a motion which affects the substantial rights of the parties. A hearing is required. Q: What is an ex-parte motion? A: It is taken or granted at the instance and for the benefit of one party, and without notice to or contestation by any party adversely affected (Regalado, Remedial Law Compendium, p. 264, 2009 ed.) g. PRO-FORMA MOTIONS

Q: What shall the notice of hearing specify?

Q: What is a pro-forma motion?

A: It shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion and it shall be addressed to the parties concerned (Sec. 5, Rule 15).

A: It is that which does not comply with the rules on motion and is considered as one filed merely to delay the proceedings (Marikina Development Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).

Note: Failure to comply with the mandatory requirements of the rule regarding notice of hearing is pro forma and presents no question which merits the attention of the court (Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003).

42

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 2. MOTIONS FOR BILL OF PARTICULARS

2.

a. PURPOSE AND WHEN APPLIED FOR

3.

Q: What is a bill of particulars and when can it be availed of? A: Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within 10 days from service thereof (Sec. 1, Rule12). (2003 Bar Question) Note: Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed on the ground that the complaint is vague or definite. (Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).

b. ACTIONS OF THE COURT Q: What are the actions taken by the court regarding the motion for bill of particulars? A: The court may either: 1. Deny it; 2. Grant it outright; or 3. Allow the parties the opportunity to be heard (Sec. 2, Rule 12). c. COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE Q: When must be the compliance be effected? A: If the motion is granted, either in whole or in part, it must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court (Sec. 3, Rule 12). Note: Bill of particulars may be filed either on a separate or in an amended pleading, serving a copy thereof on the adverse party.

Q: What is the effect of non-compliance with the order of a bill of particulars?

Note: If the plaintiff failed to comply with the period, the court upon motion of the defendant may strike out the paragraph where ambiguity lies. If the entire complaint is ambiguous, such is striken out and there is no more case.

d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING Q: What is the effect of a motion for bill of particulars on the period to file a responsive pleading? A: After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event (Sec. 5, Rule12). Q: Within the period for filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing, stating that the allegations of the complaint were sufficiently made. 1. Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? 2. If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? A: 1.

A: 1.

If the order is not obeyed or in case of insufficient compliance therewith, the court: a. May order the striking out of the pleading or the portion thereof to which the order is directed; or b. Make such order as it may deem just (Sec. 4, Rule 12)

If plaintiff, his compliant will be stricken off and dismissed (Sec. 3, Rule 17) If defendant, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Sec. 4, Rule 17; Sec. 3, Rule 9).

2.

No. Sec. 2, Rule 12 authorizes the court to either deny or grant said motion outright or allow the parties an opportunity to be heard. The court is not mandated to conduct a hearing. Yes. Sec. 4, Rule 12 authorizes the court to order the striking out of the pleading affected, hence the dismissal of the complaint. To the same end is the provision of Sec. 3, Rule 17 when the plaintiff fails to comply for no justifiable

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

43

UST GOLDEN NOTES 2011 cause with any order of the court or with the Rules. (2008 Bar Question)

8.

That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;

9.

That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;

3. MOTION TO DISMISS a. GROUNDS Q: What are the grounds for a motion to dismiss under Rule 16?

10. That a condition precedent for filing the claim has not been complied with.(Sec. 1, Rule 16)

A: 1.

That the court has no jurisdiction over the person of the defending party;

2.

That the court has no jurisdiction over the subject matter of the claim;

3.

That venue is improperly laid;

4.

That the plaintiff has no legal capacity to sue; Note: The issue of the plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceeding.

5.

That there is another action pending between the same parties for the same cause; Note: Litis pendentia requires concurrence of the following requisites: a. Identity of the parties b. Identity of rights asserted and reliefs prayed for, being founded on the same facts c. Identity with respect to the two preceding particulars, such that any judgment that may be rendered in the pending case would amount to red adjudicate in the other case. (Lim vs. Vianzon, G.R. No. 137187, Aug.3, 2006)

6.

That the cause of action is barred by a prior judgment or by the statute of limitations; Note: The requisites of res judicata include: The former judgment must be final a. The court which rendered it has jurisdiction over the subject matter and the parties b. Judgment must be on the merits c. There must be identity of parties, subject matter and causes of action

7.

That the pleading asserting the claim states no cause of action; Note: Curable by amendment

44

Note: Not jurisdictional in nature, hence, deemed waived if not raised.

b. RESOLUTION OF MOTION Q: What are the three courses of action which the trial court may take in resolving a motion to dismiss? A: 1. 2. 3.

Dismiss the action or claims; Deny the motion; or Order the amendment of the pleading (Sec. 3, Rule 16).

Note: The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor (Sec. 3, Rule16).

c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED Q: What are the remedies of the plaintiff when the complaint is dismissed? A: If the dismissal is without prejudice, the plaintiff may re-file the complaint. If the dismissal is with prejudice, the plaintiff may file an appeal. (Riano, Civil Procedure: A Restatement for the Bar, p. 319-320, 2009 ed.)

d. REMEDIES OF THE DEFENDANT WHEN THE MOTION IS DENIED Q: What are the remedies of the defendant when the motion is denied? A: File an answer and proceed with the trial. If decision is adverse, appeal therefrom and raise as error the denial of the motion to dismiss. If there is grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari or prohibition may lie under Rule 65. If there is unlawful neglect of the performance of an act which the law specifically enjoins, mandamus is the proper remedy. (Riano, Civil Procedure: A Restatement for the Bar, p. 319, 2009 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE e. EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS Q: What is the effect of dismissal on the following grounds: 1. Cause of action is barred by prior judgment or by the statute of limitations; 2. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; and 3. Claim is unenforceable under the statute of frauds? A: Dismissal is with prejudice and constitutes res judicata. The language of the rule, particularly on the relation of the words “abandoned” and “otherwise extinguished” to the phrase claim or demand deemed set forth in the plaintiff’s pleading” is broad enough to include within its ambit the defense of bar by laches. However, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved (Pineda v. Heirs of Eliseo Guevarra, G.R. No. 168557, Feb. 19, 2007). f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE DEFENSES Q: When can the grounds for motion to dismiss be pleaded as affirmative defense? A: If no motion to dismiss has been filed, any of the grounds for dismissal provided for in the Rules may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (Sec. 6, Rule 16)

g. BAR BY DISMISSAL Q: What are the grounds for dismissal that may bar the refiling of the same action or claim? A: 1. 2. 3. 4.

Res judicata; Prescription; Extinguishment of the claim or demand; and Unenforceability under the State of Frauds. (Sec. 5, Rule 16)

h. DISTINGUISH FROM DEMURRER TO EVIDENCE UNDER RULE 33 Q: Distinguish motion to dismiss under Rule 16 from motion to dismiss under Rule 33. A: Rule 16 (Motion to Dismiss) Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer

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

Rule 33 (Demurrer to Evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff

May be filed only after the plaintiff has completed the presentation of his evidence (Regalado, Remedial Law, Compendium Vol. I, p. 267, 2005 ed.) If denied, defendant may present evidence. If granted, but on appeal the order of dismissal is reversed, the defendant loses his right to present evidence (Riano, Civil Procedure: A Restatement for the Bar, p. 399, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 H. DISMISSAL OF ACTIONS 1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE 2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM 3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF Q: Distinguish the different types of dismissal under Rule 17. A: Dismissal upon notice by plaintiff (Sec. 1, Rule 17) 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 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. It is a matter of right. GR: A dismissal without prejudice i.e. the complaint can be re-filed XPNs: 1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or 2. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Twodismissal rule) (Sec. 1, Rule 17) 3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera, G.R. No. L-5189, Sept. 21, 1953) Since there is no answer yet filed by the adverse party, no counterclaim recoverable

Dismissal upon motion of plaintiff (Sec. 2, Rule 17) After service of the answer or a motion for summary judgment by the adverse party.

Dismissal due to fault of plaintiff (Sec. 3, Rule 17) 1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. 2. If the plaintiff fails to prosecute his action for an unreason-nable length of time (nolle prosequi). 3. If the plaintiff fails to comply with the Rules or any order of the court.

Matter of discretion upon the court. A complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper (Sec. 2, Rule 17).

Matter of evidence.

GR: It is a dismissal without prejudice,

GR: Dismissal is with prejudice because it has an effect of an adjudication on the merits. XPN: Unless otherwise declared by the court (Sec. 3, Rule 17)

XPN: If the order of dismissal specifies that it is with prejudice (Sec. 2, Rule 17) Note: A class suit shall not be dismissed or compromised without the approval of the court. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint.

GR: It is also without prejudice to the right of defendant to prosecute his counterclaim in a separate action. XPN: Unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17).

Dismissal upon motion of the defendant or upon the court's own motion is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action

Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this

rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).

46

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: When does the two-dismissal rule apply? A: It applies when the plaintiff has: 1. Twice dismissed the actions; 2. Based on or including the same claim; and 3. In a court of competent jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.) Note: The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)

4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT Q: What is the effect of dismissal upon a counterclaim, which was already pleaded? A: 1.

2.

3.

If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from notice of the plaintiff’s motion to dismiss. The dismissal of the complaint does not carry with it the dismissal of the counterclaim. (Riano, Civil Procedure: A Restatement for the Bar, pp. 266-267, 2009 ed.)

Q: What rule governs the dismissal of counterclaim, cross-claim, or third-party complaint? A: The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4, Rule 17).

I. PRE-TRIAL 1. CONCEPT OF PRE-TRIAL Q: What is pre-trial? A: It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action (Herrera, Vol. I, p. 1074, 2007 ed.). Q: When is pre-trial conducted? A: After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (Sec.1, Rule 18) 2. NATURE AND PURPOSE Q: What is the nature of pre-trial? A: It is mandatory (Sec. 2, Rule 18). Q: What are the purposes of pre-trial? A: The court shall consider the following purposes: 1. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. Simplification of the issues; 3. Necessity or desirability of amendments to the pleadings; 4. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5. Limitation of the number of witnesses; 6. Advisability of a preliminary reference of issues to a commissioner; 7. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. Advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action. (Sec. 2, Rule 18)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

47

UST GOLDEN NOTES 2011 3. NOTICE OF PRE-TRIAL

5.

Q: To whom shall notice of pre-trial be served? A: It shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. 3, Rule 18).

6.

4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR Q: Who has the duty to appear at the pre-trial? A: The parties and their counsel. Q: What is the effect of a party’s failure to appear during the pre-trial? A: Plaintiff’s failure to appear during the pre-trial shall be a cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. Defendant’s non-attendance during the pretrial shall be a cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof (Sec. 5, Rule 18). (1992 Bar Question) Note: The non-appearance of a party may be excused only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (Sec.4, Rule 18)

A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and The number and names of the witnesses, and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses (Sec. 6, Rule 18).

Q: What is the effect of failure to file a pre-trial brief? A: It shall have the same effect as failure to appear at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004). 6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE Q: Distinguish pre-trial in civil cases from pre-trial in criminal cases. A: Pre-trial in civil case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18)

The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. 1, Rule 18)

5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE Q: When should the parties file with the court and serve on the adverse party their pre-trial briefs? A: They shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least three (3) days before the date of the pretrial (Sec. 6, Rule 18). Q: What should a pre-trial brief contain? A: 1.

2. 3. 4.

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A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; A summary of admitted facts and proposed stipulation of facts; The issues to be tried or resolved; The documents or exhibits to be presented, stating the purpose thereof;

It considers the possibility of an amicable settlement as an important objective.

Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary conference” to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes (A.M. No. 03-109-SC). Sanctions for nonappearance in a pre-trial are imposed upon the plaintiff and the

Pre-trial in criminal case It is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense The pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118). All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2, Rule 18)

The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE defendant in a civil case (Sec. 4, Rule 18).

(Sec. 3, Rule 18)

Specifically required to be submitted in a civil case (Sec. 6, Rule 18)

Not specifically required in a criminal case.

7. ALTERNATIVE DISPUTE RESOLUTION (ADR) Q: What are the other modes of solving disputes? A: 1.

Alternative Dispute Resolution (ADR) a. Arbitration i. Domestic Arbitration

ii. iii.

2. 3. 4. 5. 6. 7.

Construction Disputes International Commercial Arbitration b. Mediation c. Conciliation d. Early Neutral Evaluation e. Mini-trial Court-Annexed Mediation Appellate Court Mediation Judicial Dispute Resolution Katarungang Pambarangay Law Small Claims Cases Rules on Summary Procedure

Q: Distinguish the other modes of solving disputes. A: ADR

1.

2.

To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. To achieve speedy and impartial justice and unclog court dockets.

Subject to the terms of the contract or the submission agreement, the arbitrators selected must, within 5 days from notice of appointment, if the parties to the controversy reside within the same city or province, or within 15 days after appointment if the parties reside in different provinces, set a time and place for the hearing of the matters submitted to them. (Sec. 12, R.A. 876)

Court-Annexed Mediation/Judicial Dispute Resolution (A.M. No, 11-1-6-SC-PHILJA) Purpose / Object The purposes of CAM and JDR is “to put an end to pending litigation through compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion”. It is also intended “to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285)”

Where to File Court acquiring jurisdiction of the case since mediation is part of the mandatory pre-trial

Appellate Court Mediation

1.

2.

After mediation has failed in the lower courts, Appellate Court Mediation provides an added option to put an end to costly and long-drawn litigation. It facilitates the interest-based settlement of the dispute through proposals coming from the parties or suggested by the mediator and accepted by the parties.

Court of Appeals

Note: Court-annexed mediation should be distinguished from court-referred mediation. The former is conducted under the court’s auspices after such court has acquired jurisdiction of the dispute while the latter is mediation ordered by the court to be conducted in accordance with the parties’ agreement when an action is prematurely commenced in violation of such agreement. The first stage is the CAM “where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators”. Upon failing to secure a settlement of the dispute during the first stage, “a second attempt is made at the JDR stage”, where the JDR judge becomes a “mediator-conciliatorearly neutral evaluator in a continuing effort to secure a settlement”

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

Any dispute or controversy which may thereafter arise between parties to a contract pursuant to an arbitration clause or any controversy or dispute wherein the parties agree to submit to an alternative dispute resolution system

1. 2. 3. 4. 5. 6. 7. 8. 9.

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Labor disputes under the Labor Code Civil status of persons Validity of a marriage Any ground for legal separation Jurisdiction of courts Future legitime Criminal liability Those which by law cannot be compromised Dispute resolution services provided by

Cases Covered 1. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of B.P. 22, except those which by law may not be compromised; 2. Special proceedings for the settlement of estates; 3. All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law 4. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code; 5. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment, where the offended party is a private person; 6. The civil aspect of estafa, theft and libel; 7. All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980; 8. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (2) of the Judiciary Reorganization Act of 1980; 9. All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; 13 and 10. All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980.” Cases Excluded 1. Civil cases which by law cannot be compromised (Article 2035, New Civil Code);

1.

2.

3.

4.

Civil cases brought on ordinary appeal or petition for review. Appeals from final orders, awards, judgments, resolutions of the Court of Tax Appeals and quasi-judicial agencies in the exercise of their quasi-judicial functions through petition for review or certiorari that questions a decision for having been rendered in grave abuse of discretion amounting to lack of jurisdiction. Special civil actions for certiorari, except those involving pure questions of law. Habeas corpus (court order directing law enforcement officials or custodians of detained persons to produce that person in court) cases involving custody of minors, with the consent of the parties, provided that the minor is not detained for commission of a criminal offense. Criminal cases cognizable by the Katarungang Pambarangay (Barangay Justice System) under R.A. 7160 or offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000 or both such fine and imprisonment.

1.

Civil cases, which by law cannot be compromised.

2.

Criminal cases except those which involve habeas corpus of minors not detained for a criminal offense.

3.

Habeas corpus petitions involving custody of minors when the subject is detained for commission of a criminal offense.

2. Other criminal cases not covered under paragraphs 3 to 6 above; 3. Habeas Corpus petitions; 4. All cases under Republic Act No. 9262 (Violence against Women and Children); and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE government agencies where mediators or arbitrators are selected by government agencies: a. Mining Act; b. Consumer Act; or c. HLURB Resolution No. R-586

5. Cases with pending application for Restraining Orders/Preliminary Injunctions.

4.

Cases with pending application for restraining orders/preliminary injunctions, unless both parties request for mediation

Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on p.17

Q: Distinguish the different kinds of the ADR system. A: Arbitration

Mediation

Conciliation

It is a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to R.A. 9285, resolve a dispute by rendering an award. It results in the adjudication of a dispute.

It is a voluntary process in which an impartial and neutral third party (mediator), selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute.

Definition A process whereby the parties request a third person or persons to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship (Art. 1 [3], UNCITRAL Model Law on Conciliation)

Arbitrator acts as out-of-court judge and settles the dispute extrajudicially.

Mediator does not render an award but only arranges the facts to be negotiated so that parties can come to a compromise agreement. He assists the parties in reaching a mutually agreeable settlement of their dispute through direct negotiations. He actively participates in resolving the dispute, and then gives an opinion.

He makes a determination of the facts and applies the law to those facts to resolve a dispute independently of the actual result desired by the parties.

The award may be final and binding if so agreed by the parties. To be executory, it must first be confirmed by

The decision or opinion is not binding on the parties. It is recommendatory in nature. The mediator

Functions A conciliator participates only in the preliminary steps of facilitating discussion between the parties and helps them frame the issues for discussion.

Effect of decision He does not render a decision. The dispute is left to be settled by the parties themselves.

Early Neutral Evaluation

Mini-Trial

It is a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced, neutral person, with expertise in the subject or the substance of the dispute.

It is a structured dispute resolution method in which the merits of a case are argued before a panel comprising of senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement.

Early neutral Evaluator assesses or reviews the issues submitted by the parties and tenders its evaluation which is non-binding.

Panel renders a decision based on the merits of the arguments of the parties.

The assessment is not binding upon the parties.

It need not be confirmed by the courts.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

51

UST GOLDEN NOTES 2011 the RTC.

merely suggests a solution to the dispute.

Q: What is the State policy in alternative dispute resolution? A: The state policy in ADR is to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements in resolving their disputes.

functions in any ADR system. An ADR practitioner refers to individuals acting as mediator, conciliator, arbitrator or neutral evaluator. (Sec.3[b] of R.A. No. 9285) J. INTERVENTION Q: What is intervention?

Q: What is the Constitutional basis of alternative dispute resolution? A: The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987 Constitution) Q: What is the legal basis of alternative dispute resolution? A: The legal basis would be, “the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” (Art. 1306, NCC) Q: What is an alternative dispute resolution system? A: It means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. (Sec.3[a] of R.A. No. 9285)

A: It is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court. This person who intervenes is one who is not originally impleaded in the action (First Philippine Holdings Corp. v. Sandiganbayan, G.R. No. 88345, Feb. 1, 1996) Note: Right to intervene is not an absolute right as it can be secured only in accordance with the terms of the applicable statute or rule. Riano, Civil Procedure: A Restatement for the Bar, p. 345, 2009 ed.)

1. REQUISITES FOR INTERVENTION Q: What are the requisites for intervention? A: 1.

Note: A motion is necessary because leave of court is required before a person may be allowed to intervene.

2.

Note: Its purposes are to: 1. Actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes; 2. Achieve speedy and impartial justice; and 3. Unclog court dockets.

3. Q: Distinguish alternative dispute resolution provider from an alternative dispute resolution practitioner. A: An ADR provider means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar

52

There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 1, Rule 19);

4.

The movant must show in his motion that he has: a. Legal interest in the matter in controversy; b. Legal interest in the success of either of the parties; c. Legal interest against both parties; or d. So situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or of an officer thereof (Sec. 1, Rule 19); Intervention will not unduly delay or prejudice the adjudication of the rights of original parties; and Intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. vs. CA, GR 140058, Aug. 1, 2002).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Is intervention an independent proceeding?

Q: May intervention be allowed after judgment has been rendered by the court?

A: GR: No. It is not an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action.

A: GR: After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant. The motion to intervene must be filed at any time before rendition of judgment by the trial court (Sec. 2, Rule 19).

XPN: When intervention has been allowed and the complaint-in-intervention has already been filed before plaintiff’s action had been expressly dismissed (Metrobank v. RTC-Manila, G.R. No. 89909, Sept. 21, 1990). (2000 Bar Question)

XPNs: 1. With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13, 1952); 2. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, Jan. 27, 1995); 3. Where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. CA, G.R. No. 91486, Sept. 10, 2003); or 4. May be allowed during the pendency of the appeal, where the interest of justice so required (Tahanan Dev. Corp. v. CA, G.R. No. L-55771, Nov. 15, 1982).

Q: What does legal interest mean? A: It must be one that is actual and material, direct and of an immediate character, not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. (Riano, Civil Procedure: A Restatement for the Bar, p. 346, 2009 ed.) 2. TIME TO INTERVENE Q: When is the time to intervene? A: The motion to intervene may be filed any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Sec. 2, Rule 19)

Q: When shall the intervenor file a pleading-inintervention? A: 1.

Q: What is the procedure for intervention? A:

2. 1. The intervenor shall file a motion for intervention attaching thereto his pleading-inintervention. 1. If the purpose is to assert a claim against either or all of the original parties – the pleading shall be called a complaint-in-intervention. 2. If the pleading seek to unite with the defending party in resisting a claim against the latter – file an answer-inintervention. (Sec 3, Rule 19) 2. The motion and the pleading shall be served upon the original parties. 3. The answer to the complaint-inintervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the courts. (Sec.4, Rule 19)

He shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties; or An answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (Sec. 3, Rule 19)

Q: When should an answer to complaint-inintervention be filed? A: It shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court (Sec. 4, Rule 19). 3. REMEDY FOR THE DENIAL OF MOTION TO INTERVENE Q: What is the remedy for the denial of motion to intervention? A: The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

53

UST GOLDEN NOTES 2011 K. SUBPOENA

Q: What is the rule when application for subpoena to a prisoner is made?

Q: What is a subpoena? A: It 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 under the laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21). 1. SUBPOENA DUCES TECUM

A: The judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose and no prisoner sentenced to death, reclusion perpetua or life imprisonment and is confined in prison shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the SC (Sec. 2, Rule 21).

Q: What is subpoena duces tecum?

Q: What are the contents of subpoena?

A: A process directed to a person requiring him to bring with him any books, documents, or things under his control (Sec. 1, Rule 21).

A: It shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant (Sec. 3).

2. SUBPOENA AD TESTIFICANDUM Q: What is subpoena ad testificandum? A: A process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted by competent authority or for the taking of his deposition (Sec. 1, Rule 21). Q: Distinguish subpoena from summons. A: Subpoena

Summons

An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage, attendance fee and reasonable cost of production fee

Order to answer complaint

Q: What is the rule on subpoena for depositions? A: Proof of service of a notice to take a deposition, as provided in Secs. 15 and 25, Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court (Sec. 5, Rule 21). Q: How is service of subpoena made?

Served on the defendant Does not need tender of kilometrage and other fees

3. SERVICE OF SUBPOENA

A: It shall be made in the same manner as personal or substituted service of summons (Sec. 6, Rule 21). Note: Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6, Rule 21).

Q: What should be delivered and tendered to the person whom subpoena is served?

Q: Who issues subpoena? A: 1. 2. 3.

4.

54

The court before whom the witness is required to attend; The court of the place where the deposition is to be taken; The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. (Sec. 2, Rule 21)

A: 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 the Rules. 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). Note: When a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made (Sec. 6, Rule 21).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Why must service of subpoena be made?

when the subpoena was served (Sec. 4, Rule 21).

A: The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance (Sec. 6, Rule 21).

L. MODES OF DISCOVERY Q: What are the different modes of discovery?

4. COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT

A: 1. 2.

Q: What is the effect of failure to comply with subpoena?

3. 4. 5.

A: GR: The court or judge which issued the subpoena may 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. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Secs. 8 and 9, Rule 21). XPNs: 1. Where the witness resides more than 100 km. from his residence to the place where he is to testify by the ordinary course of travel, generally, by overland transportation (viatory right); or 2. When the permission of the court in which the detention prisoner’s case is pending was not obtained (Sec. 10, Rule 21).

6.

Note: The modes of discovery are cumulative. They are not alternative nor mutually exclusive.

Q: What are the basic purposes of the rules of discovery? A: 1.

2.

3.

5. QUASHING OF SUBPOENA 4. Q: How to quash a subpoena? A: Subpoena duces tecum: Upon motion promptly made and, in any event, at or before the time specified therein: 1. If it is unreasonable and oppressive, or 2. The relevancy of the books, documents or things does not appear, or 3. If the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4, Rule 21). 4. That the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served Subpoena ad testificandum: 1. That the witness is not bound thereby. 2. That the witness fees and kilometrage allowed by the Rules were not tendered

Depositions pending action (Rule 23) Depositions before action or pending appeal (Rule 24) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents and things (Rule 27) Physical and mental examination of persons (Rule 28)

5.

To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions; To obtain knowledge of material facts or admissions from the adverse party through written interrogatories; To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions; To inspect relevant documents or objects, and lands or other property in the possession and control of the adverse party; and To determine the physical or mental condition of a party when such is in controversy (Koh vs. IAC, 144 SCRA 259).

1. DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL a. MEANING OF DEPOSITION Q: What is deposition? A: A deposition is 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. Deposition may be: a. An oral examination b. Written interrogatories (Sec 1, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

55

UST GOLDEN NOTES 2011 Q: When can depositions may be availed of?

XPN: If the deposition or any part thereof is offered in evidence for any purpose (Sec. 8, Rule 23).

A: a. b.

During a pending action (Rule 23) – deposition de benne esse Before action or Pending appeal (Rule 24) – deposition in perpetuam rei memoriam

XPN to the XPN: Introduction of deposition does not make the deponent his witness: 1. If the deposition is used for impeaching or contradicting the deponent (Sec. 8, Rule 23); or 2. If the adverse party uses the deposition of the other party (Sec. 4[b], Rule 23)

Q: When may plaintiff be permitted to take depositions? A: GR: Before answer is served because plaintiff must await joinder of issues. XPN: In cases of special circumstances. There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issue. E.g.: witness is aged or infirm, or about to leave the court’s jurisdiction. (Herrera, Vol. II, pp. 1213, 2007 ed.)

Q: May a party rebut a deposition? A: Yes. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party (Sec.9, Rule 23). Q: Before whom may depositions be taken? A: 1.

If within the Philippines a. Judge; b. Notary public; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 10, Rule 23).

2.

If outside the Philippines a. On notice, before a secretary of embassy or legation, consul-general, consul, vice-consul, or consular agent of the Philippines; b. Before such person or officer as may be appointed by commission or letters rogatory; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 11, Rule 23).

Q: When is leave of court necessary when taking depositions? When is it not necessary? A: 1. It is necessary a. Before service of an answer but after the jurisdiction has been acquired over the defendant or over the property subject of the action b. If the deposition to be taken is that of a prisoner. (sec 1, Rule 23) 2. It is not necessary when an answer has already been served and the deponent is not confined in prison. (sec. 1, Rule 23) Q: What is the effect of substitution of parties? A: It does not affect the right to use depositions previously taken; and when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors-ininterest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor (Sec. 5, Rule 23). Q: Should the deponent be deemed a witness of the party taking his deposition? A: GR: No (Sec. 7, Rule 23).

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Q: When shall letters rogatory or commission be issued? A: They shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate (Sec. 12, Rule 23). Q: Distinguish commission from letters rogatory. A: Commission Letters Rogatory Instrument issued by a Instrument sent in the name court of justice, or and by authority of a judge or other competent court to another, requesting tribunal, to authorize the latter to cause to be a person to take examined, upon interrogatories depositions or do any filed in a case pending before

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE other act by authority of such court or tribunal.

Issued to a nonjudicial foreign officer who will directly take the testimony.

the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony.

Applicable rules of procedure are those of the requesting court.

Applicable rules of procedure are those of the foreign court requested to act.

Resorted to if permission of the foreign country is given.

Resorted to if the execution of the commission is refused in the foreign country. (There must be a showing that the commission is inadequate or ineffective)

Leave of court is not necessary.

Leave of court is necessary.

not known, a general description sufficient to identify him or the particular class or group to which he belongs (Sec. 15, Rule 23). Note: On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time (Sec. 15, Rule 23)

Q: When may the court make orders for the protection of parties and deponents? A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make orders for the protection of parties and deponents (Sec. 16, Rule 23). Q: What are the orders that the court may make for the protection of parties and deponents? A:

Q: Who are disqualified to be a deposition officer?

1. 2.

A: 1.

2. 3.

4.

One who is related to the deponent within the 6th degree of consanguinity or affinity; An employee or attorney of one of the parties; One who is related to the attorney of the deponent within the same degree or employee of such attorney; and One who is financially interested in the action (Sec. 13, Rule 23).

3. 4. 5.

6.

Q: May the parties stipulate in writing for the taking of depositions? A: Yes. They may do so before any person authorized to administer oaths, at any time, or place, in accordance with the Rules, and when so taken may be used like other depositions (Sec. 14, Rule 23). Q: What is the requirement in taking deposition upon oral examination? A: A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action (Sec. 15, Rule 23). Q: What shall the notice state? A: It shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is

7.

8.

That the deposition shall not be taken; That it may be taken only at some designated place other than that stated in the notice; That it may be taken only on written interrogatories; That certain matters shall not be inquired into; That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; That after being sealed, the deposition shall be opened only by order of the court, or that secret processes, developments, research need not be closed; That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression (Sec. 16, Rule 23).

Q: What are the duties of the officer before whom the deposition is to be taken? A: He shall put the witness on oath and shall personally, or by someone acting under his discretion and in his presence, record the testimony of the witness (Sec. 17, Rule 23). Note: The testimony shall be taken stenographically unless the parties agree otherwise (Sec. 17, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 4. Q: What objections shall be noted by the officer upon the deposition? A: All objections made at the time of the examination to the: 1. Qualifications of the officer taking the deposition; 2. Manner of taking the deposition; 3. Evidence presented; 4. Conduct of any party; or 5. Any other objection to the proceedings (Sec. 17, Rule 23). Note: A deposition officer has no authority to rule on the objection (Herrera, Vol. II, p. 34, 2007 ed.)

Q: What may the parties do if they cannot participate in the oral examination? A: The parties may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim (Sec. 17, Rule 23). Q: What is the consequence if a party or the witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken? A: The refusal may be considered contempt of that court (Sec. 2, Rule 129). Q: When shall the deposition be submitted to the witness for examination? A: It shall be submitted when the deposition is fully transcribed and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties (Sec. 19, Rule 23).

Wtness refuses to sign (Sec. 19, Rule 23)

Q: What is the effect if the witness does not sign the deposition? A: The officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Sec. 29 (f), Rule 23, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part (Sec. 19, Rule 23). Q: What are the duties of the officer after the taking of the deposition? A: He shall: 1. Certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness; 2. Then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)"; 3. Promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing (Sec. 20, Rule 23); and 4. Give prompt notice of its filing to all the parties (Sec. 21, Rule 23). Note: Failure to comply with this requirement is a mere defect in form which cannot affect the admissibility of the deposition. (Herrera, Vol. II, p. 38, 2007 ed.)

Q: When shall the officer furnish a copy of the deposition to any party or to the deponent?

Q: What shall be done with the changes which the witness desire to make?

A: He shall furnish a copy upon payment of reasonable charges therefor (Sec. 22, Rule 23).

A: Any changes in form or substance shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them (Sec. 19, Rule 23).

Q: What is the consequence of failure to attend of the party giving notice?

Q: Is the signing of deposition necessary? A:

A: The court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees (Sec. 23, Rule 23).

GR: Yes, it shall be signed by the witness. XPN: 1. Parties by stipulation waive the signing; 2. Witness is ill; 3. Witness cannot be found; or

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Q: What is the consequence of failure of party giving notice to serve subpoena? A: If because of such failure, the witness does not attend, and if another party attends in person or by

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees (Sec. 24, Rule 23). Q: How is deposition upon written interrogatories done? 5. A: A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition (Sec. 25, Rule 23). Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also be followed on deposition upon written interrogatories (Secs. 26 & 27, Rule 23).

6.

occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. As to form of written interrogatories – Objections to the form of written interrogatories submitted under Secs. 25 and 26 are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. As to manner of preparation – Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Secs. 17, 19, 20 and 26 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained (Sec. 29, Rule 23)

Q: What is the effect of errors and irregularities in depositions?

Q: Who may file a petition for deposition before action?

A:

A: Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Sec. 1, Rule 24).

1.

2.

3.

4.

As to notice – All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. As to disqualification of officer – Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. As to competency or relevancy of evidence – Objections to the competency of witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground, of the objection is one which might have been obviated or removed if presented at that time. As to oral examination and other particulars – Errors and irregularities

Q: What are the contents of the petition? A: The petition shall be entitled in the name of the petitioner and shall show: 1. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; 2. the subject matter of the expected action and his interest therein; 3. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; 4. the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 5. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony (Sec.2, Rule 24)

3.

Q: What is the rule on notice and service of depositions before action? A: The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (Sec. 3, Rule 24) Q: What are the contents of the motion for deposition pending appeal?

any purpose by any party if the court finds that: DR. USE a. The witness is Dead b. The witness Resides more than 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 c. The witness is Unable to testify because of age, sickness, infirmity or imprisonment d. The party offering the deposition has been unable to procure the attendance of the witness by Subpoena e. Upon application and notice, that such Exceptional circumstances exist as to make it desirable in the interest of justice (Sec. 4, Rule 23)

Q: What is the dual function of depositions? A:

A: The motion shall state: 1. The names and addresses of the persons to be examined 2. The substance of the testimony which he expects to elicit from each 3. The reason for perpetuating their testimony. (Sec. 7, Rule 24). Note: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed under Rule 23. (Sec. 7, Rule 24)

b. USES; SCOPE OF EXAMINATION

1.

Rule 23 – method of discovery, with use on trial not necessarily contemplated; and

2.

Rule 24 – a method of presenting testimony.

Q: What is the use of deposition pending appeal? A: Depositions are taken pending appeal with the view to their being used in the event of further proceeding in the court of origin or appellate court. (Sec. 7, Rule 24) Note: The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. 6, Rule 24)

Q: To whom may the deposition be used against? A: Any part or all of the deposition, so far as admissible under the rules of evidence, may be used against: 1. Any party who was present or represented at the taking of the deposition; or 2. One who had due notice of the deposition (Sec. 4, Rule 23) Q: What are the uses of depositions? A: 1. 2.

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Contradicting or impeaching the testimony of the deponent as a witness; Any purpose by the adverse party where the deponent is a party; or

Q: What is the scope of the examination of the deponent? A: Unless otherwise ordered by the court as provided by Sec. 16 or 18, Rule 23, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the: 1. Existence; 2. Description; 3. Nature; 4. Custody; 5. Condition; 6. Location of any books, documents, or other tangible things; and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 7.

The identity and location of persons having knowledge of relevant facts (Sec. 2, Rule 23).

Q: Distinguish protection order from motion to terminate or limit examination. A:

c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23) d. WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED Q: What are the grounds for the termination or limitation of the examination? A: 1. 2.

3.

Upon a showing that the examination is being conducted in bad faith; In such manner as unreasonably to annoy, embarrass or oppress the deponent or party (Sec. 18, Rule 23); or When the constitutional privilege against self-incrimination is invoked by deponent or his counsel (Herrera, Vol. II, p. 37, 2007 ed.).

Note: If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable (Sec. 18, Rule 23).

Q: When may taking of deposition be terminated or its scope limited? A: At any time during the taking of the deposition, on motion or petition of any party or of the deponent. (Sec. 18, Rule 23)

Protection Order (Sec. 16, Rule 23) Provides protection to the party or witness before the taking of deposition. The Motion is filed with the court in which the action is pending.

Motion to Terminate or Limit Examination (Sec. 18, Rule 23) Provides such protection during the taking of deposition. Motion or petition is filed in the court in which the action is pending or the RTC of the place where the deposition is being taken.

Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23). 2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES Q: What is the purpose of interrogatories to parties? A: For eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25). Q: Distinguish particulars.

interrogatories

from

bill

of

A: Interrogatories Interrogatories to parties are not directed to a particular pleading. Instead, they seek to disclose all material and relevant facts from a party (Sec 1, Rule 25)

Bill of Particulars Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in a pleading. It is therefore directed to a pleading (Sec 1, Rule 12)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Distinguish depositions upon written interrogatories under Rule 23, Section 25 from interrogatories to parties under Rule 25. A: Depositions Upon Written Interrogatories to Interrogatories to Parties Parties (Rule 25) (Sec. 25, Rule 23) Deponent Party or ordinary witness Party only Procedure With intervention of the No intervention. officer authorized by the Written interrogatories Court to take deposition are directed to the party himself Not served upon the adverse party directly. They Served directly upon are instead delivered to the the adverse party (Sec officer before whom the 1, Rule 25) deposition is to be taken. (Sec 26, Rule 23) Scope Direct, cross, redirect, reOnly one set of cross interrogatories Interrogatories 15 days to answer No fixed time unless extended or reduced by the court

Q: What is interrogatories?

the

procedure

in

taking

A: The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, it shall be answered by any of its officers competent to testify in its behalf. (Sec 1, Rule 25) The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. Q: How many interrogatories may a party serve? A: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party (Sec. 4, Rule 25). Q: How are interrogatories answered? A: 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, unless the court, on motion and for good cause shown, extends or shortens the time (Sec. 2, Rule 25).

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Note: The party against whom it is directed may make objections to the interrogatories. (Sec. 2, Rule 25) Judgment by default may be rendered against a party who fails to serve his answer to written interrogatories. (Sec.3[c], Rule 29)

Q: How can a party make objections to the interrogatories? A: Objections shall be presented to the court within 10 days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories (Sec. 3, Rule 25). Q: Is leave of court necessary before a party may be served with written interrogatories? A: GR: It is not necessary after answer has been served, for the first set of interrogatories. XPN: It is necessary before answer has been served because, at that time, the issues are not yet joined and the disputed facts are not yet clear. Q: What is the scope and use of interrogatories? A: Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule (Sec. 5, Rule 25). a. CONSEQUENCES OF REFUSAL TO ANSWER Q: What are the consequences of refusal to answer? A: (1) If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. 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

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 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). (2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (Sec. 2, Rule 29). (3) If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the

arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. 3, Rule 29). b. EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES Q: What is the effect of failure to serve written interrogatories? A: GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. XPN: When allowed by the court and there is good cause shown and the same is necessary to prevent a failure of justice (Sec. 6, Rule 25). Note: The sanctions adopted by the rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him.

3. REQUEST FOR ADMISSION Q: What admissions may be requested from the adverse party? A: Admission of the: 1. Genuineness of any material and relevant document described in and exhibited with the request; or 2. Truth of any material and relevant matter of fact set forth in the request (Sec. 1, Rule 26). Note: The request for admission must be served directly upon the party; otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein on account of failure to answer the request for admission (Briboneria v. CA, G.R. No. 101682, Dec. 14, 1992). However, the answer to a request for admission properly served which was signed and sworn to by the counsel of the party so requested, is sufficient compliance with this rule, especially in the light of counsel’s authority under Secs. 21 and 23, Rule 138 (Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1, 2002)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: When may request for admission be made? A: At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter. (Sec. 1, Rule 26). a. IMPLIED ADMISSION BY ADVERSE PARTY Q: When is there an implied admission? A: GR: Each of the matters of which an admission is requested shall be deemed admitted. XPN: Unless, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. 2, Rule 26).

Q: When should objections to any request for admission be submitted? A: They shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable (Sec. 2[b], Rule 26). Q: May an admission be withdrawn? A: Yes. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. 4, Rule 26). d. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION Q: What is the effect of failure to file and serve request for admission?

Note: When the defendant is silent on the plaintiff‘s request for admission, he is deemed to have impliedly admitted the facts set forth therein (Herrera, Vol. II, p. 56, 2007 ed.)

A: A party who fails to file and serve a request for admission on the adverse party on material and relevant facts at issue shall not be permitted to present evidence on such facts unless otherwise allowed by the court for good cause shown and to prevent a failure of justice (Sec. 5, Rule 26).

b. CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION

4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Q: What is the effect for failure to answer a request for admission?

Q: What may the court order under this mode of discovery?

A: The facts or documents are deemed admitted. Under the Rules, each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request which shall not be less than 15 days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matter of which an admission is requested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. (Sec. 2, Rule 26)

A: Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to: 1. Produce and permit the inspection and copying or photographing, by or on behalf of the moving party, or of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or 2. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon (Sec. 1, Rule 27).

c. EFFECT OF ADMISSION Q: What is the effect of admission? A: Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. 3, Rule 26).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What are the limitations on the request for production or inspection of documents or things?

A: 1.

A: 1. 2.

3.

Should not be privileged; Should constitute or contain evidence material to any matter involved in the action and which are in his (the party ordered) possession, custody, or control (Sec. 1, Rule 27); and In the petition, the papers and documents to be produced must be sufficiently described.

2.

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. (Sec 1, Rule 27) The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (Sec 1, Rule 27)

5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Q: What are privileged communications? Q: When may physical and mental examination of persons be ordered?

A: 1.

2. 3. 4. 5. 6.

Communication between: a. Husband and wife b. Attorney and client c. Physician and patient d. Priest and penitent e. Public officers and public interest Editors may not be compelled to disclose the source of published news Voters may not be compelled to disclose for whom they voted Trade secrets Information contained in tax census returns; and Bank deposits.

Q: Distinguish the rule on production or inspection of documents or things under Rule 27 from subpoena duces tecum.

A: It may be ordered in an action in which the physical or mental condition of a party is in controversy (Sec. 1, Rule 28). Note: Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege.

Q: What is the procedure to avail physical and mental examination of persons? A: 1.

2.

A: Production or Inspection of Documents or Things Essentially a mode of discovery. Limited to the parties to the action. Issued only upon motion with notice to the adverse party.

Subpoena Duces Tecum Means of compelling production of evidence It may be directed to any person whether a party or not. Issued upon an ex parte application.

3.

4.

A motion must be filed showing good cause for the examination, with notice to the other parties as well aside from the party to be examined. (Sec 2, Rule 28) The motion shall specify the time, place, manner, conditions and scope of the examination and by the person/s by whom it is made. (Sec 2, Rule 28) 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. (Sec 3, Rule 28) 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)

Note: This mode of discovery does not authorize the opposing party or the clerk of court or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily (Tanda v. Aldaya, GR No. L-13423, Nov. 23, 1959).

Q: What is the effect if the party refuses to deliver the report upon request to the person causing the examination to be made?

Q: What is the procedure to avail the production or inspection of documents or things?

A: The court may order requiring the delivery on such terms as are just. (Sec 3, Rule 28)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is the effect if the physician refuses or fails to make a report?

1.

A: The court may exclude his testimony. (Sec 3, Rule 28) 2. Q: What is the effect if the party examined requests and obtains a report on the results of the examination? A:

He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition (Sec. 3, Rule 28) He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has so examined or may thereafter examine him (Sec. 4, Rule 28).

6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY Q: What are the sanctions in case of refusal to comply with the modes of discovery? A: Refusal to answer any question upon oral examination Order to compel an answer; Contempt; Require payment of reasonable fees incurred by the proponent; Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. 5. Dismiss the action or the proceeding; 6. Render a Judgment by default against the disobedient party; 7. Refuse to allow the disobedient party to support or oppose claims or defenses; 8. Strike out all or any part of the pleading of the disobedient party; 9. Stay further proceedings until order is obeyed; 10. Order the arrest of the refusing party. Refusal to produce document or thing for inspection, copying or photographing 1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Refuse to allow the disobedient party to support or oppose claims or defenses; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party 8. Order the arrest of the refusing party. Refusal to submit to Physical or Mental examination 1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Prohibit the disobedient party to introduce evidence of physical and mental conditions; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party Refusal to the request for admission by adverse party 1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4) 2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26). 1. 2. 3. 4.

Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment.

Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp., G.R. No. 172175, Oct. 9, 2006).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE M. TRIAL Q: When is a case ready for trial? Q: What is a trial? A: It is a judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments (Riano, Civil Procedure: A Restatement for the Bar, p. 394, 2009 ed.) Q: Is trial necessary? A: GR: When an issue exists, trial is necessary. Decision should not be made without trial. XPNs: There is no need for trial in the following cases: 1. Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34); 2. Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35); 3. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18; Art. 2028, NCC); 4. Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par., Sec. 5, Rule 7); 5. Where the case falls under the operation of the Rules on Summary Procedure (Rule 17); 6. Where, the parties agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts (1996 Bar Question).

A: When the issues are joined. Issues are joined when all the parties have placed their respective theories and the terms of the dispute are placed before the court. Q: What is the rule on notice of trial? A: Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (Sec.1, Rule 30) 1. ADJOURNMENTS AND POSTPONEMENTS Q: What is the rule on adjournment and postponement of trial? A: 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, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (Sec 2, Rule 30) Note: A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic vs Sandiganbayan) A motion for continuance or postponement is not a matter of right but is addressed to the sound discretion of the court, and its action thereon will not be disturbed by the appellate courts in the absence of clear and manifest abuse of discretion resulting in the denial of substantial justice.

2. REQUISITES OF MOTION TO POSTPONE TRIAL Q: What are postponements?

the

criteria

in

granting

Q: Distinguish trial from hearing. A: A: Trial Reception of evidence and other processes. The period for the introduction of evidence by both parties.

Hearing Not confined in trial but embraces several stages of litigation, including the pretrial stage. Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard.

1. 2.

Reason for the postponement; Merits of the case of the movant a. FOR ABSENCE OF EVIDENCE

Q: What are the requisites of a motion to postpone trial for absence of evidence? A: Affidavit showing: a. The evidence is material or relevant

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 b.

That due diligence has been used to procure it

Note: But the adverse party may avoid it by admitting the facts sought to be proven by the absent evidence, even if he objects or reserves the right to their admissibility. (Sec.3, Rule 30)

b. FOR ILLNESS OF PARTY OR COUNSEL Q: What are the requisites of a motion to postpone trial for illness of party or counsel? A: Affidavit showing: a. Presence of such party or counsel at the trial is indispensable; b. Character of illness is such as to render his non-attendance excusable 3. AGREED STATEMENT OF FACTS Q: Distinguish stipulation of facts in civil cases visa-vis criminal cases. A: Civil Cases May be signed by the counsel alone who has a special power of attorney. May be made verbally or in writing.

Criminal Cases Must be signed both by the counsel and the accused. Strict. It must always be in writing.

Q: What is the rule on stipulation of facts? A: The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 7, Rule 30) Note: Stipulation of facts is not permitted in actions for annulment of marriage and for legal separation. 4. ORDER OF TRIAL; REVERSAL OF ORDER Q: What is the procedure in trial? A: Subject to the provisions of Sec. 2, 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:

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Plaintiff shall adduce evidence in support of his complaint Defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third party complaint

Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and fourth-party complaint

Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them

Parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court

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

Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings Note: 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 (Sec. 5, Rule 30)

Q: When is a reverse order of trial allowed? A: Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place. Since the defendant admits the plaintiff’s claim but seeks to avoid liability based on his affirmative defense he shall proceed first to prove his exemption.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 5. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL

2.

Q: Distinguish consolidation from severance. A:

If filed with the different branches of the same RTC and one of such cases has not been partially tried. (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24, 1971)

Q: When may civil actions be suspended? Consolidation

Involves several actions having a common question of law or fact which may be jointly tried (Sec.1, Rule 31).

Severance Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

A: 1.

2.

Q: What are the requisites for consolidation? A: 1. 2.

Actions involving a common question of law or fact; and There must be at least 2 actions pending before the same court (Sec.1, Rule 31).

Q: What are the ways of consolidating cases? A: Recasting the Cases Reshaping of the cases by amending the pleading, dismissing some cases and retaining only one case. There must be joinder of causes of action and of parties.

Consolidation Proper It is a joint trial with joint decision, the cases retaining their original docket numbers.

Test-Case Method By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. The cases retain their original docket numbers (Riano, Civil Procedure, p. 96, 2009 ed.).

Q: What is the rule on consolidation of cases? A:

If willingness to discuss a possible compromise is expressed by one or both parties; or If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).

6. DELEGATION OF RECEPTION OF EVIDENCE Q: May the judge delegate the reception of evidence? A: GR: No. The judge shall personally receive and resolve the evidence to be adduced by the parties. XPN: The reception of evidence may be delegated to the Clerk of Court, under the following conditions: 1. The delegation may be made only in defaults or ex parte hearings, and in any case where the parties agree in writing; 2. The reception of evidence shall be made only by the clerk of that court who is a member of the bar; 3. Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits; and 4. He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing (Sec. 9, Rule 30). 7. TRIAL BY COMMISSIONERS

GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial court and save unnecessary costs and expenses. XPNs: Consolidation becomes a matter of duty when: 1. If two or more cases are pending before the same judge; or

Q: Who is a commissioner? A: 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. Q: Distinguish delegation to clerk of court under Rule 30 from trial by commissioner under Rule 32.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A:

b. POWERS OF THE COMMISSIONER

Delegation to Clerk of Court Delegation is made during trial. Clerk of court must be a lawyer. Clerk of court cannot rule on objections or on the admissibility of evidence.

Trial by Commissioner Commissioner can be appointed even after the case has become final and executory. Commissioner need not be a lawyer. Commissioner can rule on objections or on admissibility of evidence.

Q: What is the rule on trial by commissioner? A: GR: Discretionary upon the courts. XPNS: 1. 2. 3. 4.

Expropriation (Rule 67); Partition (Rule 69); Settlement of estate of a deceased person in case of contested claims; and Submission of accounting by executors or administrator.

Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. It can be waived by consent of the parties, express or implied.

a. REFERENCE BY CONSENT OR ORDERED ON MOTION Q: How may a case be referred to a commissioner? A: By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec. 1, Rule 32). Q: When may a case be referred to a commissioner if the consent of the parties are not given? A: 1.

2.

3.

4.

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When the trial of an issue of fact requires the examination of a long account on either side; When the taking of an account is necessary for the information of the court before judgment; When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case; or For carrying a judgment or order into effect (Sec. 2, Rule 32).

Q: What are the powers of a commissioner? A: 1. 2.

3. 4. 5.

Power to regulate the proceedings in every hearing before him; Do all acts and take all measures necessary or proper for the efficient performance of his duties under the order of reference; Issue subpoenas ad testificandum and duces tecum; Swear witnesses; and Rule upon the admissibility of evidence (Sec.3, Rule 32).

Note: Requirement of hearing cannot be dispensed with as this is the essence of due process.

Q: What is the effect of failure of parties to appear before a commissioner? A: 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 (Sec.6, Rule 32) c. COMMISSIONER’S REPORT; NOTICE TO PARTIES AND HEARING ON THE REPORT Q: What is a commissioner’s report? A: Upon 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 or law in his report. He shall attach in his report all exhibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him (Sec. 9). Note: The commissioner’s report is not binding upon the court which is free to adopt, modify, or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49 Phil. 39).

Q: What is the rule on notice of filing of the report? A: Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 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. (Sec.10, Rule 32)

appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (Sec.1, Rule 33)

Note: GR: Notice of the filing of the report must be sent to the parties for the purpose of giving them an opportunity to present their objections (Santos vs. Guzman, 45 Phil. 646). The failure to grant the parties, in due form, this opportunity to object, may, in some instances, constitute a serious error in violation of their substantial rights (Govt. vs. Osorio, 50 Phil. 864).

A:

XPN: The rule, however, is not absolute. In Manila Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. 539, it was ruled that although the parties were not notified of the filing of the commissioner’s reports, and the court failed to set said report for hearing, if the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard, the requirement of due process has been satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision which meets the requirements of fair and open hearing.

Q: What should be heard commissioner’s report hearing?

during

Q: What is the effect of filing of demurrer to evidence?

Motion Granted but Reversed on Appeal Movant shall have the Movant is deemed to have right to present his waived his right to present evidence evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence. Denial is interlocutory, hence, not appealable. Order of the court is an Sec. 1, Rule 36 (that adjudication on the merits. judgment should state Hence, the requirement in clearly and distinctly the Sec. 1, Rule 36 should be facts and the law on which complied with. it is based), will not apply. Motion Denied

the

A: In the hearing to be conducted on the commissioner’s report, the court will review only so much as may be drawn in question by proper objections. It is not expected to rehear the case upon the entire record (Kreidt vs. McCullough and Co., 37 Phi. 474).

Note: A demurrer to evidence under Rule 33 is in effect, a motion to dismiss but is not the same as what is described in Rule 16.

Q: Distinguish a demurrer to evidence from a motion to dismiss. A: Motion to Dismiss (Rule 16)

N. DEMURRER TO EVIDENCE Q: What is demurrer to evidence? A: It is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case (Regalado, Vol. I, p. 391, 2005 ed.). The aim of this rule is to discourage prolonged litigation.

When to file

Grounds

Note: There is only a one side trial, i.e. it is only the plaintiff who has presented evidence.

Q: When may a party to the case move for dismissal based on insufficiency of evidence? A: 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. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on

If denied

If granted

Before filing of answer

The 10 grounds enumerated in Rule 16

The defendant may file his responsive pleading. The complaint may be refiled depending on the ground of dismissal.

Demurrer to Evidence (Rule 33) After the plaintiff rests its case or after the completion of the presentation of evidence That upon the facts and the law, the plaintiff has shown no right to relief

The defendant may present his evidence. The complaint may NOT be filed. The remedy of the plaintiff is to appeal from the dismissal.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: ABS Co. is the operator of several buses. One of the buses owned by ABS Co. rammed with a dump truck causing the instantaneous death of Nilo, one of the passengers of the ill-fated bus. Consequently, Nestor, son of Nilo, filed a complaint against ABS Co. for damages. After Nestor had rested his case, ABS Co. filed a demurrer to evidence, contending that Nestor's evidence is insufficient because it did not show (1) that ABS Co. was negligent and (2) that such negligence was the proximate cause of the collision. Should the court grant or deny defendant's demurrer to evidence? Reason briefly.

2. EFFECT OF DENIAL Q: What is the effect of denial of demurrer to evidence? A: 1. 2. 3.

A: No, the court should not grant defendant’s demurrer to evidence. Under the Rules of Court, 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. Here, Nestor has shown that he is entitled to the relief he is asking for. ABS Co. is a common carrier. Under Article 1756 of the Civil Code, in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence. Proof that the defendant was negligent and that such negligence was the proximate cause of the collision is not required. Thus, without proof that ABS Co. has exercised extraordinary diligence, the presumption of negligence stands. (2004 Bar Question)

4.

3. EFFECT OF GRANT Q: What is the effect of granting the demurrer to evidence? A: 1.

The case shall be dismissed.

Note: The plaintiff may file an appeal and if that appeal was granted, the defendant loses his right to present evidence. (Sec.1, Rule 33)

2.

Upon appeal, the appellate court reversing the order granting the demurrer should not remand the case to the trial court. Instead, it should render judgment based on the evidence submitted by the plaintiff. (Radiowealth Finance Corporation vs Del Rosario, 335 SCRA 288)

3.

The demurrer to evidence abbreviates judicial proceedings.

Q: What is judgment on demurrer to evidence? A: It is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

The defendant shall have the right to present his evidence (Sec. 1, Rule 33) The court shall set the date for the reception of the defendant’s evidence. An order denying a demurrer to evidence not appealable (because it is interlocutory) XPN: It can be subject to petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. The right to present evidence after denial of demurrer to evidence does not apply to election cases.

1. GROUND

4. WAIVER OF RIGHT TO PRESENT EVIDENCE

Q: On what ground may the demurrer to evidence be filed?

Q: When is there a waiver of right to present evidence?

A: The only ground for demurrer to evidence is that the plaintiff has no right to relief.

A: If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence (Sec.1, Rule 33)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases. A: Leave of court If granted

Civil Case Not required The Plaintiff may appeal from the order of dismissal of the case

Criminal Case With or Without The Plaintiff cannot make an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy The Defendant may adduce his evidence only if the demurrer is filed with leave of court.

The Defendant may proceed to adduce his evidence If denied

If the plaintiff appeals from the order of dismissal

How can demurrer be denied?

If there was no leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence If the court finds plaintiff’s evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal 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 plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer

If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appealable; double jeopardy sets in

The plaintiff files a motion to deny motion to demurrer to evidence.

O. JUDGMENTS AND FINAL ORDERS

The court may motu proprio deny the motion.

5.

Q: What is a judgment? A: It is a final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. Q: What are the kinds of judgment? A:

6. 1.

2.

3.

4.

Judgment upon compromise – It is one conferred on the basis of a compromise agreement entered into between the parties. Judgment by confession – It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. Judgment upon the merits – It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. Clarificatory judgment – It is rendered to clarify an ambiguous judgment or one difficult to comply with.

7.

8.

9.

Judgment nunc pro tunc (Now for then) – A judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect. Judgment sin perjuicio – Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. This is not allowed. Judgment by default (Sec. 3, Rule 9) – Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence. Judgment on the pleadings (Rule 34) – Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. Summary judgment (Rule 35) – One granted by the court for the prompt

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Several judgment (Sec. 4, Rule 36) – It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. Separate judgment (Sec. 5, Rule 36) – It is one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of said claim. Special judgment (Sec. 11, Rule 39) – One which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Payment of money; and b. Sale of real and personal property. Judgment for specific acts (Sec. 10, Rule 39) – Applicable in cases of: 1. Conveyance, delivery of deeds, or other specific acts, vesting title; 2. Sale of real or personal property; 3. Delivery or restitution of real property; 4. Removal of improvements on property subject of execution; or 5. Delivery of personal property. Judgment on demurrer to evidence (Rule 33) – A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. Conditional judgment – It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Final judgment – One which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined.

A:

Q: What are those which are not considered as decisions?

A:

10.

11.

12.

13.

14.

15.

16.

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1.

2.

3.

Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals. Minute Resolutions – if issued by SC denying or dismissing a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order is deemed sustained. Interlocutory Orders – those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. E.g. Order denying a motion to dismiss, granting an extension of time or authorizing an amendment. Note: Appeal is not proper to question an interlocutory order. The proper remedy to question an interlocutory order is a petition for certiorari under Rule 65.

1. JUDGMENT WITHOUT TRIAL Q: What is a judgment without trial? A: The theory of summary judgment is that although an answer may on its face appear to tender issues—requiring trial—yet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. The court is expected to act chiefly on the basis of the affidavits, depositions, admissions submitted by the movants, and those of the other party in opposition thereto. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. A hearing is not thus de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions. Under the circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. The summary judgment here was justified, considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989). 2. CONTENTS OF A JUDGMENT Q: What are the two parts of a judgment?

1. 2.

Ratio decidendi – the body of judgment Fallo – The dispositive portion of the judgment. It is also the part of judgment that is subject to execution because this is

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE the judgment of the court itself, i.e. if the petition is granted or denied and the relief granted.

Note: in the above cases, the material facts alleged in the complaint shall always be proved (Sec. 1, Rule 34)

4. SUMMARY JUDGMENTS Q: How should a conflict between the parts of a decision be resolved? GR: If there is a conflict between the ratio decidendi and the fallo, the fallo should prevail. Reason: the fallo is the final order while the ratio decidendi is merely a statement ordering nothing. XPN: If there is a mere mistake in the fallo and the the ratio decidendi is so clear that it states a conclusion, the latter should prevail. (Poland Industrial Limited vs. National Development Company, 467 SCRA 500) Q: What are the requisites of a valid judgment? A: 1. 2. 3. 4. 5.

6.

Authority of the court to hear and determine the case. Jurisdiction – over the parties and the subject matter The parties must have been given an opportunity to adduce evidence. The evidence must have been considered by the tribunal in deciding the case. The judgment must be in writing, personally and directly prepared by the judge. The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court. NOTE: Only for decisions and final orders on merits and does not apply to those resolved through incidental matters.

3. JUDGMENT ON THE PLEADINGS

Q: What is a summary judgment? A: A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, of for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may subject a party-in-interest to the burden of trial. Moreover, said summary judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim (Monterey Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003). Q: What are judgments?

the

requisites

of

summary

A: 1.

2.

There must be no genuine issue as to any material fact, except for the amount of damages; and The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. a. FOR THE CLAIMANT

Q: When is a claimant allowed to file for summary judgment?

Q: When is there a judgment based on pleadings?

Note: Judgment must be on motion of the claimant. It cannot be rendered by the court motu proprio.

A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. 1, Rule 35).

Q: What are cases where judgment on the pleadings will not apply?

b. FOR THE DEFENDANT

A: Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading.

A: 1. 2. 3.

Actions for the declaration of nullity of a marriage Actions for annulment of marriage Actions for legal separation

Q: When is a defendant allowed to file for summary judgment? A: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. 2, Rule 35).

d. AFFIDAVITS AND ATTACHMENTS Q: What are the rules on affidavits and attachments on summary judgments?

c. WHEN THE CASE NOT FULLY ADJUDICATED A: Q: What happens when a case is not fully adjudicated? A: If on motion, judgment is not rendered upon the whole case of for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly (Sec. 4, Rule 35).

1.

2.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5, Rule 35). Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt (Sec. 6, Rule 35).

5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS

Answer

Notice Termination Who can file

Basis of the judgment

Judgment on the pleadings Answer does not tender an issue

Movants must give a 3-day notice of hearing Entire case may be terminated Only the plaintiff or the defendants as far as the counterclaim, cross-claim or third-party complaint is concerned can file the same Based only on the pleadings alone, hence, only on the complaint and the answer

6. RENDITION OF JUDGMENTS AND FINAL ORDERS Q: What is a rendition of judgment? A: Rendition of judgment is the filing of the same with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court (Ago vs.

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Summary judgments There is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right Opposing party is given 10 days notice May only be partial Either the plaintiff or the defendant may file it

Based on the pleadings, affidavits, depositions, and admissions

CA, 6 SCRA 530). It is not the writing of the judgment or its signing which constitutes rendition of the judgment (Castro vs. Malazo, 99 SCRA 164). Q: How should a judgment be prepared? A: A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court (Sec. 1, Rule 36).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE its periods, not more than six (6) months from the entry of the judgment or final order (Sec. 3, Rule 38).

7. ENTRY OF JUDGMENT AND FINAL ORDER Q: What is an entry of judgment?

P. POST JUDGMENT REMEDIES

A: The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment and after the same has become final and executory. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executory (Sec. 2, Rule 36). Q: What happens if no appeal was filed on time? A: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. (Sec. 2, Rule 36) Note: There are some proceedings the filing of which is reckoned from the date of the entry of judgment: (a) the execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. 6, Rule 39); (b) the filing of a petition for relief has, as one of

Q: What are the available remedies to the aggrieved party after rendition of judgment? A: The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory. 1. Before a judgment becomes final and executory, the aggrieved party may avail of the following remedies: a. Motion for Reconsideration; b. Motion for New Trial; and c. Appeal 2. After the judgment becomes executory, the losing party may avail of the following: a. Petition for relief from judgment; b. Action to annul judgment; c. Certiorari; and d. Collateral attack of a judgment.

1. MOTION FOR NEW TRIAL OR RECONSIDERATION a. GROUNDS b. WHEN TO FILE Q: Distinguish motion for new trial from motion for reconsideration. A: MOTION FOR NEW TRIAL

MOTION FOR RECONSIDERATION

Grounds 1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired; or 2. Newly discovered evidence, which could not with reasonable diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). Requisites 1. Must be in writing; 2. Affidavit of the existence of FAME and newly discovered evidence; Note: Whenever a remedy is allowed on the ground of FAME, an affidavit of merit is obligatory. 3. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action; 4. In case of newly discovered evidence: a. Affidavit of new witnesses; and b. Duly authenticated documents to be introduced.

1. 2. 3.

1. 2.

The damages awarded are excessive; The evidence is insufficient to satisfy the decision or final order; or The decisionor final order is contrary to law (Sec. 1, Rule 37). Must point out specifically the conclusion of judgment; Express reference to testimonial or documentary evidence or to provisions of law.

Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15. The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere scrap of paper and will not toll the reglementary period for appeal. When to file ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal. Note: The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40). Second motion may be allowed so long as based on grounds not existing or available at the time the first motion was made. (Sec. 5, Rule 37)

If granted, the original judgment or final order shall be vacated, and the action shall stand for trial de novo. The recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6, Rule 37).

Single motion rule (applicable only on a judgment or final order but not to interlocutory order) (Sec. 5, Rule 37) No new trial or hearing will take place and the judgment will be based on the pleadings submitted by the parties. If granted, the court may amend such judgment or final order accordingly (Sec. 3, Rule 37).

Note: The amended judgment is in the nature of a new judgment which supersedes the original judgment. If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).

Available even on appeal but only on the ground of newly discovered evidence.

Available against judgments or final orders of both the trial and appellate courts.

Both must be resolved within 30 days from the time it is submitted for resolution Both are prohibited motions under Summary Procedure

COMMON PROVISIONS Q: What is the period to file motion for new trial or reconsideration? A: Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 1, Rule 40). Note: No extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed.

Q: When is a record of appeal required? A: A record of appeal is required only in: 1. Special proceedings; 2. Other cases of multiple or separate appeal (Section 3, Rule 40) Q: What is the effect of filing a MNT/ MR on the period to appeal? A: The filing of a timely motion interrupts the period to appeal (Section 2, Rule 40; Section 3, Rule 41).

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c. DENIAL OF THE MOTION; EFFECT Q: What is the effect if the MNT or MR is denied? A: The movant has a “fresh period” of 15 days from the receipt or notice of the order denying or dismissing the motion within which to file a notice of appeal (fresh period rule). (Neypes v. CA, G.R. No.141524, Sept. 14, 2005) d. GRANT OF THE MOTION; EFFECT Q: What is the effect of a grant of the motion? A: If a new trial be granted in accordance with the provisions of the rules, the original judgment shall be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6). The filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41). If the court grants the motion (e.g., it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law), it may amend such judgment or final order

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE accordingly (Sec. 3). The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel vs. Alegre, 172 SCRA 315). If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7). e. REMEDY WHEN MOTION IS DENIED, FRESH 15DAY PERIOD RULE Q: What is the remedy if the motion is denied? A: The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration or new trial (Sec. 9, Rule 37, Rules of Court). The movant has a fresh period of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. It is no longer assailable by certiorari. (Sec.9, Rule 37, A.M. No. 077-12-SC). Q: When does the fresh period rule apply? A: It applies to: 1. Rule 40 – MTC to RTC 2. Rule 41 – Appeals from RTC 3. Rule 42 – Petition for Review from RTC to CA 4. Rule 43 – Appeals from quasi-judicial agencies to CA 5. Rule 45 – Appeals by certiorari to the SC

Q: What happens if the motion is filed without the required affidavits? A: Non- compliance with the requirements of the Rules would reduce the motion to a mere proforma motion. Note: Under Sec. 2,Rule 37 a pro- forma motion shall not toll the reglementary period of appeal.

Q: What is a pro- forma motion? A: A pro- forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87). MOTION FOR NEW TRIAL Q: What is a Motion for New Trial? A: It is a motion for the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken. Q: What are the requisites of newly discovered evidence as a ground for New Trial? A: 1. 2.

Note: The “fresh period rule” does not refer to the period within which to appeal from the order denying the motion for reconsideration, but to the period within which to appeal from the judgment itself because an order denying a motion for reconsideration is not appealable.

3.

Q: When should the motion be resolved? A: The motion shall be resolved within 30 days from the time it is submitted for resolution (Section 4, Rule 37).

The evidence was discovered after trial; Such evidence could not have been discovered and produced at the trial with reasonable diligence; and Such evidence is material, not merely cumulative, corrobative or impeaching, and is of such weight that if admitted would probably change the judgment (BERRY RULE) (CIR v. A. Soriano Corporation, GR No. 113703 January 31, 1997).

Q: Distinguish Newly Discovered Evidence from Forgotten Evidence. A:

Q: Is a MNT/ MR a prerequisite for taking an appeal or petition for review? A: A final MNT/ MR is not a prerequisite to an appeal, a petition for review or petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict or prospective application of said ruling is in order (Habaluyas v. Japson, GR No. 70895, May 30, 1986).

NEWLY DISCOVERED EVIDENCE Evidence was not available to a party during a trial, and was discovered only thereafter.

FORGOTTEN EVIDENCE Evidence was already available to a party and was not presented through inadvertence or negligence of the counsel; it is not a ground for new trial.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Distinguish extrinsic fraud from intrinsic fraud. A: EXTRINSIC FRAUD Connotes any fraudulent scheme executed by the prevailing party outside trial against the losing party who because of such fraud was prevented from presenting his side of the case

INTRINSIC FRAUD Refers to the acts of party during trial which does not affect the presentation of the case

Q: Distinguish Motion for New Trial from Motion for Reopening of the Trial.

A: The purpose of a motion for reconsideration is precisely to request the court or the quasi- judicial body to take a second look at its earlier judgment and correct any errors it may have committed therein (Reyes v. Pearlbank Securities, GR No. 171435, July 30, 2008). Q: Is a second motion for reconsideration allowed? A: A second motion for reconsideration is not allowed. The prohibition on a second motion applies only when the motion is directed against a judgment or a final order. The rule does not apply to a motion for reconsideration of an interlocutory order. Q: When may there be partial reconsideration?

A: MOTION FOR NEW TRIAL A motion must be filed Proper only after promulgation of judgment Based upon specific grounds mentioned in Sec. 37 in civil cases and Sec. 121 in criminal cases

MOTION FOR REOPENING OF TRIAL The judge may act motu propio May properly be presented only after either or both parties have formally offered and closed their evidence before judgment Controlled by no other than the paramount interest of justice, resting entirely on the sound discretion of the court, the exercise of such shall not be reviewable on appeal UNLESS a clear abuse thereof is shown.

A: If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37). Q: In a case filed by Pedro against Juan, the latter received the adverse decision of the RTC on March 1, 2008. On March 14, 2008, Juan filed a motion for reconsideration. Juan received the decision of the trial court dismissing his motion on April 1, 2008. When should Juan file his notice of appeal to the CA?

Q: Is a second motion for new trial allowed? A: Yes. A second motion for new trial is authorized by the Rules. A motion for new trial shall include all grounds then available. Those not so included are deemed waived. However, when a ground for a new trial was not existing or available when the first motion was made, a second motion for new trial may be filed within the period allowed but excluding the time during which the first motion had been (Section 5, Rule 37) MOTION FOR RECONSIDERATION Q: What is a motion for reconsideration? A: A motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order. It is not the motion for reconsideration of an interlocutory order which for instance precedes a petition for certiorari. Q: What is the purpose of a MR?

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A: Juan has 15 days from the receipt of the decision of the trial court denying his motion for reconsideration to file his notice of appeal. To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the SC deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The order denying the motion for new trial or reconsideration is the “final order” (Fresh period rule) (Neypes v. CA, G.R. No. 141524, Sept. 14, 2005). 2. APPEALS IN GENERAL Q: Is the right to appeal part of due process?

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law (Stolt- Nielsen v. NLRC, GR No. 147623, December 13, 2005). Q: What are the basic guidelines as regards appeal? A: a. No trial de novo shall be made. The appellate courts must decide the case on the basis of the record, except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. 22[d], BO 129; Rule 21[d], Interim Rules); b. There can be no new parties; c. There can be no change of theory (Naval vs. CA, 483 SCRA 102); d. There can be no new matters (Ondap vs. Aubga, 88 SCRA 610); e. There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. Shell, 97 SCRA 407); f. The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. of Orion vs. Concha, 50 Phil. 679); g. Appeal by guarantor does not inure to the principal (Luzon Metal vs. Manila Underwriter, 29 SCRA 184); h. In ejectment cases, the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. Bataclan, 135 SCRA 342); i. The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21, Interim Rules). Q: Distinguish Notice of Appeal from Record on Appeal? A: NOTICE OF APPEAL Deemed perfected as to him upon the filing of the notice of appeal. If decision is made by the courts of 1st level, notice of appeal need not state the court to which the appeal is being taken (Sec.3, Rule 40) because there is only one court to which it shall be made – RTC If decision is made by the

RTC in its original jurisdiction, notice of appeal to the RTC must disclose where appeal is to be taken. (Sec 5, rule 41) Period available is 15 days before the judgment becomes final and executor

appeal beyond that period)

If required, the appellant has 30 days to file and serve both notice and record on appeal. Should indicate: If required, copies of 1.Parties to the appeal; both the notice of 2.Judgment or final order or appeal and the record part thereof appealed from; on appeal shall be filed 3.Material dates showing the In court and served to timeliness of the appeal the adverse party.

Q: What are those cases which allow multiple appeals? A: The civil cases which admit of multiple appeals are: 1. Actions for recovery of property with accounting; 2. Actions for partition of property with accounting; 3. Special civil actions of eminent domain and foreclosure of mortgage; and 4. Special proceedings. Q: What is the rationale for allowing multiple appeals? A: To enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Roman Catholic Archbishop of Manila v. CA, GR No. 111324, July 5, 1996). a. JUDGMENT AND FINAL ORDERS SUBJECT TO APPEAL Q: What kind of judgments and final orders are subject to appeal?

RECORD ON APPEAL Required only in Special Proceedings and other cases of multiple or separate appeals.

A: An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec.1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits.

Deemed perfected as to him with respect to the subject matter thereof upon its approval. (30 days is the period for filing, only the court may approve the record on

b. MATTERS NOT APPEALABLE Q: What cases are not appealable? A: 1. Order denying a petition for relief or any similar motion seeking relief from judgment; 2. Interlocutory order;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 3. Order disallowing or dismissing an appeal; 4. Order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5. Order of execution; 6. Judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and 7. Order dismissing an action without prejudice (Sec. 1 as amended by A.M. No. 07-7-12-SC).

Q: Can the court consider errors not raised in the assignment of errors? A: GR: No. The court as a rule shall not consider errors not raised in the assignment of errors XPN: Sec. 5, Rule 51 precludes its absolute application. The court may consider an error not raised on appeal provided the same falls within any of the following categories: a. b. c.

Note: The order denying a motion for new trial or reconsideration has been deleted from the list by virtue of A.M. No. 07-7-12-SC.

Q: Can a question that was never raised in the courts below be allowed to be raised for the first time on appeal? A: GR: No. A question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process (Bank of Commerce vs. Serrano, 451 SCRA 484). For an appellate court to consider a legal question, it should have been raised in the court below (PNOC vs. CA, 457 SCRA 32). It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. it is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot vs. Poblete, GR 144435, Feb. 6, 2007). XPNs: The rule admits of exceptions as in cases of: a. Lack of jurisdiction; b. Where the lower court committed plain error; c. Where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot v. Poblete GR No. 144435, February 6, 2007).

d.

e.

It is an error that affects the jurisdiction over the subject matter; It is an error that affects the validity of the judgment appealed from; It is an error which affects the proceedings; It is an error closely related to or dependent on an assigned error and properly argued in the brief; or It is a plain and clerical error.

Q: What is the basis of the court’s power to rule on such issues not raised on appeal? A: The court is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, as it finds that the consideration is necessary in arriving at a complete and just resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105, 2007). c. REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE Q: What is the remedy in cases where appeal is not allowed? A: GR: In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1 Rule 41). XPN: An order denying a motion for new trial or a motion for reconsideration may no longer be assailed by way of Rule 65 as per A.M. No. 07- 712, the proper ground is to appeal from the judgment (Sec. 9, Rule 37). d. MODES OF APPEAL Q: What are the different modes of appeal? A: 1.

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Ordinary appeal (Rule 40 and 41)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE a. b.

Notice on appeal Record on appeal

2. 3.

Petition for review (Rule 42, 43) Appeal by certiorari(Rule 45)

Q: Distinguish the following modes of appeal. A: MODE OF APPEAL

Ordinary Appeal (MTC to RTC) Rule 40 a. Notice of Appeal

b.

Record of Appeal

Ordinary Appeal (RTC to CA) Original Jurisdiction Rule 41 a. Notice of Appeal

b.

Record of Appeal

Petition for Review (RTC to CA) Appellate Jurisdiction Rule 42

Petition for Review (QuasiJudicial Bodies to CA) Rule 43

PERIOD OF APPEAL

Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 2. Rule 40).

PERIOD OF APPEAL IF A MR OR MNT WAS FILED (Neypes Doctrine)

ISSUES THAT MAY BE RAISED

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Questions of fact or mixed questions of fact and law.

Within 30 days after notice of the judgment or final order (Sec 2. Rule 40).

Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 3. Rule 41).

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Within 30 days after notice of the judgment or final order (Sec 3. Rule 41). Note: appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from (AM No. 01-1-03-SC, June 19, 2001) Within 15 days from notice of the decision to be reviewed or from the denial of a MR or new trial (Sec. 1 Rule 42). Note: The court may grant an additional period of 15 days provided the extension is sought: a. Upon proper motion; and b. Upon payment of the full amount of the docket and other lawful fees before the expiration of the reglementary period. Within 15 days from receipt of judgment or final order or of last publication (Sec. 4, Rule 43).

Questions of fact or of law or mixed question of fact and law that has been raised in the court below and is within the issues framed by the parties (Sec. 15, Rule 44).

Questions of fact, of law, or mixed questions of fact and law Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Questions of fact, of law, or mixed questions of fact and law (Sec. 3, Rule 43). Note: The appeal shall not stay the award, judgment, final order unless the CA directs otherwise (Sec. 12, Rule 43).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Petition for Review on Certiorari Rule 45 1. RTC to SC (Sec 2c, Rule 41); 2. CA to SC (Sec. 1, Rule 45); 3. Sandiganbayan to SC (Sec. 1, Rule 45); 4. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45 as amended by AM No. 07- 7-12- SC); 5. Appeals from a judgment or final order in a petition for a writ of amparo to the SC (AM No. 07-9-12- SC); and 6. Appeals from a judgment or final order in a petition for a writ of Habeas Data (AM No. 08-116-SC).

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 (Sec. 2, Rule 45). Note: The SC may for justifiable reason grant an extension of 30 days only within which to file the petition provided: a. There is a motion for extension of time duly filed and served; b. There is full payment of the docket and other lawful fees and the deposit for costs; and c. The motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2, Rule 45).

Within 15 days from receipt of the order denying motion for reconsideration or new trial

Only questions of law (Sec. 1, Rule 45).

Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR 141524, Sept. 14, 2005)

BEFORE FINALITY OF JUDGMENT (1) ORDINARY APPEAL (2) PETITION FOR REVIEW (3) PETITION FOR REVIEW ON CERTIORARI Q: Distinguish an ordinary appeal from a petition for review. A: Ordinary Appeal A matter of right All the records are elevated from the court of origin Notice or record on appeal is filed with the court of origin As to duration of residual powers: Until the records are transmitted to the appellate court.

Petition for Review Discretionary No records are elevated unless the court decrees it Filed with the CA As to duration of residual powers: Until the CA gives due course to the petition.

Q: Distinguish Rule 45, Rule 64 and Rule 65. A: Review of Judgments, Final Orders or Resolutions (Rule 64)

Petition for Certiorari(Rule 65)

Petition is based only on questions of law.

Petition is based on questions of law.

Petition is based on questions of jurisdiction, that is, whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion.

It is a mode of appeal.

It is a mode of appeal but the petition used is Rule 65.

It is a mode of review.

Appeal by Certiorari(Rule 45)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts on the merits Filed within 15 days from notice of judgment, final order or resolution appealed from. Stays the judgment or order appealed from

Involves review of judgments, final orders or resolutions of COMELEC and COA. Note: CSC judgments, final orders or resolutions are governed by Rule 43

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed. Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just.

May be directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy. Filed not later than 60 days from notice of judgment, order or resolution appealed from. Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action. Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC)

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded.

The COMELEC and COA shall be public respondents who are impleaded in the action.

Motion for reconsideration is not required.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed.

The court is in the exercise of its appellate jurisdiction and power of review.

The court is in the exercise of its appellate jurisdiction and power of review.

Court exercises original jurisdiction.

Filed with the SC.

Filed with the SC.

Filed with the RTC, CA, Sandiganbayan or COMELEC. (1991, 1998, 1999 Bar Question)

e. ISSUES TO BE RAISED ON APPEAL

Procedure: A Restatement for the Bar, pp. 445-446, 2009 ed.)

Q: What issues are to be considered in appeal? f. PERIOD OF APPEAL A: GR: Only errors assigned in the brief may be considered on appeal XPNs: 1. Grounds not assigned as errors but affecting the jurisdiction over the subject matter 2. Matters not assigned as errors on appeal but are evidently plain or clerical errors within the contemplation of law; 3. Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice; 4. Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; 5. Matters not assigned as errors on appeal but closely related to an error assigned; and 6. Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. (Riano, Civil

Q: What is the period to appeal? A: Within 15 days from notice of the judgment or final order appealed from. Where record on appeal is required: Within 30 days from notice of the judgment or final order. In habeas corpus cases, 48 hours from notice of judgment or final order appealed from. Note: Where both parties are appellants, they may file a joint record on appeal (Sec. 8, Rule 41). The period shall be interrupted by a timely Motion for New Trial or Motion for Reconsideration.

Q: May a period of appeal be extended? A: Yes, under the sound discretion of the court. The mere filing of the motion for extension of time to perfect the appeal does not suspend the running of the reglementary period. Q: What is the effect if the extension of the period to appeal is granted/denied?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A: If granted, and the notice thereof is served AFTER the expiration of the period to appeal, the extension must be computed from the date of notice. Note: If no action is taken on the motion for extension, or if it is denied after the lapse of the period to appeal, THE RIGHT TO APPEAL IS LOST.

Q: What is the effect of judgment on those who failed to appeal? A: 1. As to affirmative relief – an appellee who has himself not appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court

g. PERFECTION OF APPEAL

2. As to reversal of judgment GR: Binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal

Q: When is an appeal perfected? What is its effect? A: 1. Appeal by notice of appeal – perfected as to the party upon filing of the notice of appeal in due time and upon payment of the appellate court docket fee. Effect: the court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties 2.

Appeal by record on appeal – perfected as to the party with respect to the subject matter thereof upon the approval of the record on appeal filed in due time and upon payment of the appellate court docket fee.

XPN: Where the rights of the parties appealing are so interwoven and dependent on each other as to be inseparable, in which case a reversal as to one operates as a reversal to all. Note: Even if the appeal was filed out of time, the court still has jurisdiction to admit and give due course to it, PROVIDED there are justifiable reasons (e.g. in the exercise of the equity jurisdiction of the courts, where a stringent application of the rule would not serve the demands of substantial justice). This is tantamount to a valid order granting the extension if any is prayed for.

Q: Is the perfection of an appeal jurisdictional? A: GR: Yes. Perfection of appeal within the reglementary period is jurisdictional.

Effect: The court loses jurisdiction only over the subject matter upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties 3.

Appeal by petition for review – upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. Effect: RTC loses jurisdiction over the case upon the perfection of the appeal and the expiration of the time to appeal of the other parties.

Note: In either case, prior to the transmittal of the original record or record on appeal to the appellate court, the trial court may, motuproprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees on time. The court may also exercise its residual powers.

XPN: When there has been extrinsic fraud, accident, mistake, or excusable negligence (FAME), resort to Petition for relief from judgment under rule 38. (Habaluyas v. Japson, 142 SCRA 208 (1986)). Q: What is the effect of a perfected appeal? A: GR: Judgment is not vacated by appeal, but is merely stayed and may be affirmed, modified or reversed or findings of facts or conclusions of law may be adopted by reference. XPN: Not applicable to civil cases under the Rules on Summary Procedure which provides that the decision of the RTC in civil cases governed by said Rule including forcible entry and unlawful detainer cases, shall be immediately executory without prejudice to a further appeal that maybe taken therefrom. Q: Would non- payment of docket fees result to the dismissal of the case?

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: GR: Payment of docket fee is jurisdictional. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory (Regalado v. Go, GR No. 167988, February 6, 2007).

Q: Where to appeal from a judgment or final order of a Municipal Court?

However: the rule must be qualified: 1. The failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal; 2. Such power should be used in the exercise of the court’s sound discretion (Republic v. Spouses Luriz, GR No. 158992, January 26, 2007).

Q: When should the appeal be taken?

A: An appeal from a judgment or final order of Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains (Section 1, Rule 40).

A: 1. An appeal may be taken within 15 days after notice to the appellant of the judgment or final order appeals from (Section 2, Rule 40); 2. Where a record of appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 2, Rule 40).

h. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Q: Discuss the procedure of appeal from decisions of the MTC to the RTC. A: Appeal decision of MTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment.

Q: How should the RTC decide an appeal from an order of a lower court dismissing a case without trial or those rendered without jurisdiction? A: 1.

Copies of the notice, and record on appeal when required, shall be served on the adverse party.

The MTC clerk transmits record to the RTC within 15 days from perfection of appeal.

Parties are given notice that the records have been received by the RTC.

1. 2.

Within 15 days from notice of appeal – appellant submits memorandum to the RTC. Within 15 days from receipt of appellant’s memorandum – appellee files his memorandum.

Note: Failure of the appellant to file a memorandum shall be a ground for the dismissal of the appeal.

2.

If the lower court dismissed the case without trial on the merits, RTC may: a) Affirm- in such case, it is a declaration of the merits of the dismissal; b) Affirm and the ground of dismissal is lack of jurisdiction over the subject matter – the action of the RTC is a mere affirmation of the dismissal. The RTC shall try the case on the merits as if the case was originally filed with it; c) Reverse – it shall remand the case for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings and additional evidence (Sec. 8, Rule 40).

Q: What if the case is dismissed for lack of jurisdiction? A: The order of dismissal is one without prejudice and the plaintiff may simply refile the complaint in the court with the proper jurisdiction because: GR: The order dismissing an action without prejudice is not appealable (Section 1g, Rule 41) XPN: Section 8, Rule 40 allows an appeal from an order of the MTC dismissing a case for lack of jurisdiction.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 i. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC

Within 30 days after perfection of the appeals, the RTC clerk shall verify the records and transmit the same to the appellate court and shall furnish the parties with copies of his letter of transmittal of the records to the appellate court

Q: What are the three modes of appeal from the decisions of the RTC? A: 1.

2.

3.

Ordinary appeal or appeal by writ of error – where judgment was rendered in a civil or criminal action by the RTC in the exercise of original jurisdiction (governed by Rule 41, taken to the CA on questions of fact or mixed questions of fact and law); Petition for review – where judgment was rendered by the RTC in the exercise of appellate jurisdiction (governed by Rule 42, brought to the CA on questions of fact, of law, or mixed questions of fact and law); or Petition for review on certiorari – to the SC (governed by Rule 45, elevated to the SC only on questions of law).

Note: Rule 41 refers to appeals from RTC exercising original jurisdiction. An appeal on pure questions of law cannot be taken to the CA and such improper appeal will be dismissed pursuant to Sec. 2, Rule 50 (Regalado, Remedial Law Compendium, Vol. 1, p. 526, 2007 ed.).

ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR FROM THE RTC TO THE CA Q: What may be the subject of an appeal under Rule 41? A: An appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein when declared by the Rules to be appealable (Section 1, Rule 41). Q: When does Rule 41 on Ordinary Appeal apply? A: Rule 41 applies to appeals from the judgment or final orders of the RTC in the exercise of its original jurisdiction (Section 2a, Rule 41). Q: Discuss the procedure of appeal from decisions RTC to the CAunder Rule 41? A: Appeal the decision of the RTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment

. Upon receipt of the original records and documents and upon payment of docket fees, the clerk of court of the CA shall docket the case and notify the parties

Within 45 days from the receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service to the appellant

Within 45 days from the receipt of the appellant’s brief, the appellee shall file his own brief with proof of service to the appellant

Within 20 days from the receipt, the appellant may file a reply brief Note: In petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not filed. Instead the parties shall file their memoranda within a non- extendible period of 30 days from the receipt of notice that all the evidences are already attached to the record (Sec 10, Rule 44).

Q: What is the title of the case when appealed to the CA under Rule 41? A: In all cases appealed to the CA under Rule 41, the title of the case shall remain as it was in the court of origin but the party appealing the case shall be referred to as the appellant and the adverse party appellee (Sec 1. Rule 44). Q: Distinguish a brief from a memorandum. A: Brief Ordinary appeals

Memorandum Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases

Filed within 45 days

Filed within 30 days

Contents specified by rules

Shorter, briefer, only one issue involved – No subject index or assignment of errors, just facts and law applicable

Copies of the notice, and record on appeal when required, shall be served on the adverse party.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What are the contents of appellant’s brief? A: The appellant’s brief shall contain, in the order herein indicated, the following: 1.

2.

3.

4.

5.

6.

7.

8.

A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record; Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; Under the heading "Argument," the appellant’s arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the judgment or final order appealed from (Sec. 13, Rule 44).

Q: What are the contents of the appellee’s brief? A: The appellee’s brief shall contain, in the order herein indicated, the following: 1.

A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases

2.

3.

alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading "CounterStatement of Facts," he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found (Sec. 14).

Q: What is the purpose of an appellant’s / appellee’s brief? A: To present to the court in a concise form the points and question in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion/ decision (De Liano v. CA (2006)). Q: What is meant by Residual Jurisdiction of the court? A: The term refers to the authority of the trial court to issue orders for the protection and preservation of the rights of the parties. The concept of residual jurisdiction is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA, 458 SCRA 454). Q: What are the Residual Jurisdiction/Powers exercised by the trial court? A: 1.

2.

Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal. Approve compromise agreements by parties after judgment has been rendered, (there is no rule that forbids

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. 4. 5.

litigants to settle amicably even if there is a judgment already) Permit appeals of indigent litigants. Order execution pending appeal in accordance with sec. 2, rule 39. Allow withdrawal of appeal.

4.

Note: Provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Section 9, Rule 41).

5.

RULE 42: PETITION FOR REVIEW FROM THE RTC TO THE CA Q: When does Rule 42 apply? A: Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the former in the exercise of its appellate jurisdiction. Q: The RTC affirmed the appealed decision of the MTC. You are the counsel of the defeated party and he tells you to appeal the RTC's decision. 1. What mode of appeal will you adopt? 2. Within what time and in what court should you file your appeal?

Must be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. There must be a certification against forum shopping (Sec. 2, Rule 42).

Q: What is the effect of failure to comply with the requirements? A:The failure of the petitioner to comply with

any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof (Sec. 3, Rule 45). Q: Is a petition for review a matter of right?

The mode of appeal is by petition for review under Rule 42 of the Rules of Court. The period of appeal is within 15 days from notice of the decision subject of the appeal or of the denial of a motion for new trial or reconsideration filed in due time to the CA. (1998 Bar Question)

A: It is not a matter of right but discretionary on the CA. It may only be given due course if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed or dismiss the petition if it finds that it is patently without merit, or prosecuted manifestly for delay, or the questions raised therein are too unsubstantial to require consideration. (Sec. 42)

Q: What are the contents of the petition for review?

Q: What are the contents of comment to the petition?

A:

A:

A: 1.

2.

1.

2. 3.

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State the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; Indicate the specific material dates showing that it was filed on time; Set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal;

1.

2.

3.

State whether or not he accepts the statement of matters involved in the petition; Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and State the reasons why the petition should be denied or dismissed. (Sec. 5, Rule 42)

Q: Is the doctrine of residual jurisdiction applicable to Appeals under Rule 42? A: Yes, provided that such residual jurisdiction/ power is exercised before the CA gives due course to the petition (Section 8, Rule 42).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What is the effect of an appeal to the judgment or final order?

2.

A: The appeal, as a rule, shall stay the judgment or final order; unless the CA, the law or the rules shall provide otherwise.

3.

Note: Civil cases decided under the Rules on Summary Procedure shall not be stayed (Section 8b, Rule 42).

Q: Give some instances where the CA may act as a trial court. A: 1.

2.

3. 4. 5.

6.

7.

8.

In annulment of judgment under Secs. 5 and 6, Rule 47. Should the CA find prima facie merit in the petition, the same shall be given due course and summons shall be served on the respondent, after which trial will follow, where the procedure in ordinary civil cases shall be observed. When a motion for new trial is granted by the CA, the procedure in the new trial shall be the same as that granted by a RTC (Sec. 4, Rule 53). A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102). In petition for writs of amparo and habeas data, a hearing can be conducted. Under Sec. 12, Rule 124 of the Rules of Criminal Procedure, the CA has the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues which fall within its original and appellate jurisdiction. The CA can grant a new trial based on the ground of newly-discovered evidence (Sec. 14, Rule 124). The CA under Sec. 6, Rule 46, whenever necessary to resolve factual issues, may conduct hearing thereon or delegate the reception of the evidence of such issues to any of its members or to an appropriate agency or office. Human Security Act. (2008 Bar Question)

Q: What are the grounds for the Court of Appeals to dismiss an appeal? A: Under Sec.1 Rule 50, the CA, upon its own motion or upon the motion of the appellee an appeal may be dismissed on the following grounds: 1.

Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules;

4.

5.

6.

7.

8.

9.

Failure to file the notice of appeal or the record on appeal within the period prescribed by the Rules; Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 Rule 40 and Sec. 4 of Rule 41; Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec.4 of Rule 44 Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the Rules; Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Sec.13, paragraphs (a), (c), (d) and (f) of Rule 44; 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; 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 The fact that the order or judgment appealed from is not appealable (En Banc Resolution, February 17, 1998)

Note: The grounds are discretionary upon the appellate court. The very wording of the rule uses the word “may” instead of “shall”. This indicates that it is only directory and not mandatory. Sound discretion must be exercised in consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case (Mercury Drug Corporation vs. De Leon, G.R. No. 165622, October 17, 2008.)

RULE 45: APPEAL BY CERTIORARI TO THE SC Q: Is the appeal under Rule 45 a matter of right? A: An appeal or review under Rule 45 is not a matter of right, but of sound judicial discretion with the exception of cases where the penalty of death, or reclusion perpetua where the an appeal is a matter of right leaving the reviewing court without any discretion (People v. Flores, GR No. 170565, January 31, 2006). Q: When does Appeal by Certiorari under Rule 45 apply? A: Appeal by certiorari to the Supreme Court or petition for review on certiorari applies in the following cases:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 1.

2.

3.

4.

5.

6.

Appeal from a judgment or final order of the RTC in cases where only questions of law are raised or are involved and the case is one decided by the said court in the exercise of its original jurisdiction (Section 2c, Rule 41); Appeal from the judgment, final order or resolutions of the Court of Appeals where the petition shall raise only questions of law (Section 1, Rule 45); Appeal from the judgment, final order or resolutions of the Sandiganbayan where the petition shall raise only questions of law (Section 1, Rule 45); Appeals from the decision or ruling of the Court of Tax Appeals en banc (Section 11, RA 9282; Section 1, Rule 45 as amended by AM No, 07-7-12-SC); Appeals from a judgment or final order in a petition for writ of amparo to the Supreme Court which may raise questions of fact, questions of law or of both fact and law (AM No. 08-1-16-SC, Rule on the Writ of Amparo (Section19) October 24, 2007); Appeal from judgment or final order in a petition for the writ of Habeas Data. The appeal may raise questions of fact or law or both (AM No. 08-1-16-SC, Rule on the Writ of Habeas Data (Section 19) February 2, 2008).

Q: When is there a question of law? How does it differ from a question of fact? A: There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. A question of fact on the other hand is when the doubt or difference arises as to the truth or falsehood of the facts alleged.

but only from judgments and final orders of the court enumerated in Sec. 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies are now required to be brought to the CA on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasijudicial agencies. (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998) Q: Is the mode of appeal prescribed under Rule 45 applicable to criminal cases? A: Yes. Except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment (Section 9, Rule 45). Q: Can a case decided by the RTC in the exercise of its appellate jurisdiction be appealed by way of a petition for review on certiorari under Rule 45? A: No, where a case is decided by the RTC in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, of law or mixed questions of fact and law, the appeal shall be brought to the CA by filing a petition for review under Rule 42 (Quezon City v. ABS-CBN Broadcasting Corporation, GR No. 166408 October 6, 2008). Q: Discuss the procedure for filing an appeal by certiorari. A: RTC, Sandiganbayan or RTC renders decision.

Aggrieved party files a petition for review on certiorari within 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial.

Q: May a petition for review on certiorari include prayer for the grant of provisional remedies? A: The petition for review on certiorari may include an application for a writ of preliminary injunction or other provisional remedies. The petitioner may also seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency (Sec. 1, Rule 45 as amended by A.M. No. 07-7-12-SC). Q: Does Rule 45 include appeals from quasijudicial bodies? A: No. Under the present Rule 45, appeals may be brought through a petition for review on certiorari

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Petitioner serves copies on adverse parties and the lower court and pays the corresponding docket fees.

SC may either dismiss the petition, or require the appellee to comment. If given due course, parties may submit memoranda.

SC may affirm, reverse, or modify judgment of the lower court.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE With the SC (Section 5 (1) Article VIII, 1987 Constitution).

Within 20 days from the receipt, the appellant may file a reply brief

Note: the petition shall raise only questions of law, which must be distinctly set forth. Appeals to the SC are made only by verified petitions for review on certiorari,

Q: When may the SC, on its own initiative, deny the petition for review? A: 1. 2. 3.

XPN: appeals from judgements of the RTC in criminal cases where the penalty imposed is life imprisonment or reclusion perpetua (elevated by ordinary appeal), or death penalty (subject to automatic review).

The appeal is without merit; Prosecuted manifestly for delay; or That the questions raised therein are too unsubstantial to require consideration (sec.5, Rule 45)

Q: Distinguish Certiorari under Rule 45 and Certiorari under Rule 65.

j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA

A:

Q: May a reversal of judgment benefit a party who did not join or was not made a party to the appeal?

CERTIORARI (RULE 45) Mode of appeal which seeks to review final judgments and orders (Section 2, Rule 41)

Raises questions of law It shall be filed within 15 days from notice of judgment or final order appealed from

Does not require prior motion for reconsideration Stays the judgment sought to be appealed

The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Section 4a, Rule 45). Filed with the SC (Section 1, Rule 45).

CERTIORARI (RULE 65) Special civil action; an original action (Rule 65). It may be directed against an interlocutory order or matters where no appeal may be taken from (Section 1, Rule 41) Raises questions of jurisdiction It shall be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed and in case a MR or motion for new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from the notice of denial of said motion Requires as a general rule, a prior MR Does not stay the judgment or order subject of the petition unless enjoined or restrained. The tribunal, board, officer exercising judicial or quasijudicial functions is impleaded as respondent (Section 5 Rule 65).

Filed with the RTC (Section 21, BP 129); With the CA (Section 9, BP 129);

A: GR: The reversal of a judgment on appeal is generally binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal. XPN: Where the rights of such parties are so interwoven and dependent on each other as to be inseparable due to community of interests. Q: When may the SC review the findings of fact of the CA? A: GR: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. The SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law (Natividad v. MTRCB, GR No. 161422, December 13, 2007). XPNs: 1. The conclusion of the CA is grounded entirely on speculations, surmises and conjectures; 2. The inference made is manifestly mistaken, absurd or impossible; 3. There is grave abuse of discretion; 4. The judgment is based on misapprehension of facts; 5. The findings of facts are conflicting; 6. The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 7.

The findings are contrary to those of the trial court; 8. The findings of facts are conclusions without citation of specific evidence on which they are based; 9. The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record; or 11. Those filed under Writs of amparo, habeas data, or kalikasan. k. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA Q: Where should the appeal from the decision of the CTA en banc be taken? A: A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 (Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC). Q: Melissa filed with the BIR a complaint for refund of taxes paid, but it was not acted upon. So, she filed a similar complaint with the CTA raffled to one of its divisions. Melissa's complaint was dismissed. Thus, she filed with the CA a petition for certiorari under Rule 65. Does the CA have jurisdiction over Melissa's petition? A: No. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. On the other hand, a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 of the Rules of Court. R.A. 9282 expanded the jurisdiction of the CTA and elevated the same to the level of a collegiate court equivalent to the rank of the CA. Hence, the CA no longer has jurisdiction to review the decisions of the CTA en banc. (2006 Bar Question) l. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA m. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COMELEC n. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE CSC Q: What is the remedy of a party aggrieved by the decision of the COMELEC, COA and CSC?

A: A judgment, resolution or final order of the COMELEC and the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec. 2, Rule 64). On the other hand, judgments, final orders or resolutions of the CSC may be taken to the CA under Rule 43 of the Rules of Court (Sec. 1, 3 Rule 43). o. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN Q: Does the CA have jurisdiction to review the decisions in criminal and administrative cases of the Ombudsman? A: It depends 1.

In administrative disciplinary cases, the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43.

Note: The provision of Section 27 of RA 6770 (The Ombudsman Act of 1987) insofar as it allowed a direct appeal to the Supreme Court was declared unconstitutional as it increased the appellate jurisdiction of the SC without the advice and concurrence of the Court (Fabian v. Deseirto, 356 SCRA 787).

2.

In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. Where the findings of the ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the SC under Rule 65 (Enemecio vs. Office of the Ombudsman, 419 SCRA 82)

Q: What is the remedy of a party aggrieved by the decision of the Sandiganbayan? A: Decisions and final orders of the Sandiganbayan shall be appealable to the SC by way of certiorari under Rule 45 raising pure questions of law (Section 1, Rule 45). p. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC Q: What is the remedy of a party aggrieved by the decision of the NLRC? A: The remedy is to promptly move for the reconsideration of the decision and if denied, to

94

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE timely file a special civil action of certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes vs. NLRC, G.R. No. 130866, September 16, 1998). If filed with SC it shall be dismissed instead of referring the action to the CA (A.M. No. 99-2-01-SC). Note: Those judgments and final orders or resolutions of the Employees Compensation Commission should be brought to the CA through a petition for review under Rule 43.

q. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI- JUDICIAL AGENCIES Q: What is a quasi-judicial agency? A: An organ of the government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. Q: What are the agencies included under Rule 43? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Civil Service Commission; Central Board of Assessment Appeals; Securities and Exchange Commission; Office of the President; Land Registration Authority; Social Security Commission; Civil Aeronautics Board; Bureau of Patents, Trademarks and Technology Transfer; National Electrification Administration; Energy Regulatory Board; National Telecommunications Commission; Department of Agrarian Reform under R.A. 6657; GSIS; Employee Compensation Commission; Agricultural Inventions Board; Insurance Commission; Philippine Atomic Energy Commission; Board of Investments; Construction Industry Arbitration Commission; and Voluntary Arbitrators authorized by law (Sec. 1 Rule 43).

Note: The office of the Prosecutor is NOT a quasijudicial body and its action approving the filing of information is not appealable to the CA under Rule 43.

Q: Where should the judgments and final orders of quasi- judicial bodies be appealed?

A: Appeals from judgment and final orders of quasijudicial bodies/ agencies enumerated in Rule 43 are now required to be brought to the CA under the requirements and conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128). Q: What issues may be raised on appeal? A: The appeal under Rule 43 may raise issues involving questions of fact, of law or mixed questions of fact and law (Section 3, Rule 43). Q: What are the contents of comment to the petition and when must it be filed? A: The comment shall be filed within 10 days from notice in 7 legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall: 1. Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and 2. State the reasons why the petition should be denied or dismissed. (Sec. 9 Rule 43) Note: The appellate court may also require the filing of a reply, but further submissions are governed by the resolution in AM No. 99-2-04.

Q; What is the effect of the appeal on the award, judgment, final order or resolution? A: The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem such (Section 12, Rule 43). Q: What is the remedy of a party aggrieved by the decision of a Quasi-judicial Agency? A: Within 15 days from: 1. Notice of the award, judgment, final order or resolution; or 2. Date of publication, if publication is required by law for its effectivity; or 3. Denial of petitioner’s MNT or MR, the aggrieved party must file a verified petition for review under rule 43 in 7 legible copies with the CA. Furnish a copy to the lower court and adverse party. The appeal may involve questions of fact, of law, or mixed questions of fact and law. Q: Is extension of time to file petition for review allowed?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A: Yes. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant additional period of 15 days only within which to file a petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. (Sec. 4, Rule 43) Q: Distinguish appeal from RTC as appellate court under Rule 42 and appeal from quasi-judicial agencies under Rule 43. A: RTC as Appellate Court (Rule 42)

Appeal from Quasi-judicial agencies (Rule 43)

Decision is stayed by an appeal.

GR: Decision is immediately executory. It is not stayed by an appeal XPN: CA shall direct otherwise upon such terms as it may deem just

Factual findings not conclusive to CA.

Factual findings are conclusive upon CA if supported by substantial evidence.

Q: Is Rule 43 applicable where the resolution was issued by a quasi-judicial agency with grave abuse of discretion? A: No, Rule 43 is not applicable where the petition contains an allegation that the challenged resolution is patently illegal and was issued with grave abuse of discretion and beyond respondent’s jurisdiction. The appropriate remedy is Rule 65 on certiorari. Q: When is the withdrawal of an appeal a matter of right? A: As a matter of right, appellant may withdraw his appeal at any time before the filing of the appellee’s brief. Thereafter, it is in the discretion of the court. AFTER FINALITY OF JUDGMENT 3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS Q: What is the nature of petition for relief from judgment? What is its purpose? A: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable neglect

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(Quelnan v. VHF Philippines, G.R. No. 138500, Sept. 16, 2005). Q: Purcon was hired as a seaman, he was repatriated due to his ailment. After undergoing some medications, he went back to work but was not re-hired due to lack of vacany. Purcon then filed a case for reimbursment of medical expenses with the NLRC. The LA dismissed the complaint for lack of merit. A memorandum of appeal with the NLRC was filed but was dismissed. Petitioner filed petition for review on certiorari under Rule 65 with the CA which was also denied, the MR was likewise denied. This prompted the petitioner to file with the SC a petition for review on certiorari under Rule 45 which was denied. As a last recourse, petitioner filed a petition for relief from judgment. Whether or not the petitioner can avail of a petition for relief from judgment after the denial of the SC of his petition for review? A: No. A petition for relief from judgment is not an available remedy in the Court of Appeals and Supreme Court. It should be filed with the same court which rendered the decision. While Rule 38 uses the phrase "any court," it refers only to Municipal/Metropolitan and Regional Trial Courts. If a petition for relief from judgment is not among the remedies available in the CA, with more reason that this remedy cannot be availed of in the Supreme Court. This Court entertains only questions of law. A petition for relief raises questions of facts on fraud, accident, mistake, or excusable negligence, which are beyond the concerns of this Court (Purcon v. MRM Philippines Inc., GR No. 182718, September 26, 2008). Q: Distinguish motion for new trial/reconsideration from petition for relief from judgment. A: Motion for New Trial / Reconsideration Available before judgment becomes final and executory.

Petition for Relief from Judgment Available after judgment has become final and executory.

Applies to judgments or final orders only.

Applies to judgments, final orders and other proceedings: e.g. land registration; special proceedings; order of execution.

Grounds for motion for new trial: 1. Fraud, accident, mistake or excusable negligence; 2. Newly discovered

Grounds: Fraud, accident, mistake or excusable negligence.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Note: The bond is conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition.

evidence Grounds for motion for reconsideration: the damages awarded are excessive; that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law (Sec. 1). Filed within the time to appeal. The order of denial is not appealable. The remedy is to appeal from judgment or final order. Legal remedy. Motion need not be verified.

a. GROUNDS FOR AVAILING OF THE REMEDY Q: What are the grounds for petition for relief? Filed within 60 days from knowledge of the judgment and within 6 months from entry of judgment(1990 Bar Question) The order of denial is not appealable; the remedy is appropriate special civil action under Rule 65 Equitable remedy.

A:

1.

A judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence (Sec. 1, Rule 38); or

2.

The petitioner has been prevented from taking an appeal by fraud, accident, mistake, or excusable negligence (Sec. 2, Rule 38).

Petition must be verified.

Note: A party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another. The remedy is to appeal from the judgment (Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).

Q: Where should the petition be filed? A: 1.

Q: Who may file the petition for relief from judgment? A: A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. A person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. (Alaban v. CA, 470 SCRA 697) Q: What are the duties of the court after an answer to the petition has been filed A: After the hearing and the court finds the allegations therein not true, it shall dismiss the petition. If the allegations are true, the court shall set aside the judgment, final order or proceeding complained of. (Sec. 6, Rule 38) Q: Is the remedy of preliminary injunction available pending the resolution of the petition for relief? A: Yes. The court may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties upon the filing of a bond (Sec. 5, Rule 38).

2.

If the petition is filed because of the first ground, the petition shall be filed in such court and in the same case (not in another or higher court). The petition shall pray that the judgment, order or proceeding be set aside (Sec. 1, Rule 38). If the petition is filed under the second ground, the petition shall likewise be filed in such court and in the same case (not in another or higher court) but the prayer this time is that the appeal be given due course (Sec. 2, Rule 38) b. TIME TO FILE PETITION

Q: When should the petition for relief be filed? A: 1.

2.

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 from entry of such judgment, order or other proceeding (Sec. 3).

Note: These two periods must concur and are also not extendible and never interrupted (Riano, Civil Procedure: A Restatement for the Bar, p. 479, 2009 ed.).

Q: May a defendant who has been declared in default right away avail of a petition for relief from the judgment subsequently rendered in the case?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A: No. The remedy of petition for relief from judgment is available only when the judgment or order in question is already final and executory, i.e., no longer appealable. As an extraordinary remedy, it may be availed only in exceptional cases where no other remedy is available. (2007 Bar Question) c. CONTENTS OF THE PETITION Q: What is the form and contents of the petition for relief? A: 1. 2. 3.

The petition for relief must be verified; It must be supported by affidavit showing the FAME relied upon; and The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense.

Note: An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant a denial of the petition, so long as the facts required to be set out also appear in the verified petition.

Q: When shall the court issue an order to answer? A:When the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof (Sec. 4, Rule 38).

remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47). Q: Who may avail this remedy? A: A person need not be a party to the judgment sought to be annulled. What is essential is 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 (Islamic Da’wah Council v. CA, G.R. No. 80892, Sept. 29, 1989). The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it from being used by a losing party to make a mockery of a duly promulgated decision that has long become final and executory. Q: Where should the petition be filed? A: Judgments of RTC Filed with the CA Basis – It has exclusive original jurisdiction over said action under Sec. 9 (2), BP 129 CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition.

Judgments of MTC Filed with the RTC Basis – RTC as a court of general jurisdiction under Sec. 19 (6), BP 129 RTC has no such discretion. It is required to consider it as an ordinary civil action.

a. GROUNDS FOR ANNULMENT 4. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Q: What are the grounds for the annulment of judgment of the RTC?

Q: What is annulment of judgment? A: A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executor judgment set aside so that there will be renewal of litigation.

1.

2.

Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).

Q: When may it be availed of? A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal, petition for relief or other appropriate

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3.

Extrinsic fraud or collateral fraud – not a valid ground if it was availed of, or could have been availed of in a motion for new trial or petition for relief. Lack of jurisdiction over the subject matter and over the person – May be barred by estoppels by laches, which is that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or to seek or enforce a right at a proper time. (1998 Bar Question) Denial of due process (Alaban v. CA, G.R. No. 156021, Sept. 23, 2005).

Q: What is extrinsic fraud?

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23, 2005).

amount of the dishonored check. The trial court ruled in favor of Jenny. Allied remitted to the sheriff a manager’s check amounting to P800,000 drawn on Rhea’s account which was duly received by Jenny. Rhea filed a petition in the CA seeking to annul and set aside the trial court’s decision on the ground of extrinsic fraud. The appellate court granted Rhea’s petition. Is the CA correct?

Q: What is meant by lack of jurisdiction? A: Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. b. PERIOD TO FILE ACTION Q: What is the period to file an action? A: 1.

2.

If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppel (Sec. 2, Rule 47).

c. EFFECTS OF JUDGMENTS OF ANNULMENT Q: What is the effect of a judgment of annulment? A: If based on lack of jurisdiction- It shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refilling of the original action in the proper court (Sec.7, Rule 47) Note: The prescriptive period for the refilling of the action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. But shall not however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47).

If based on 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. 9, Rule 47). Q: Rhea took out a loan of P1 Million from Jenny. To secure the loan, Rhea issued Jenny an Allied check in the amount of P750,000 which, however, was dishonored due to a material alteration. Rhea then remitted P600,000 to Jenny as partial payment of the loan with the balance payable at a later date. Prior to the due date for the payment of the balance, Jenny filed an action for a sum of money and damages against Allied for the full

A: Yes. Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is promulgated. It can be filed by one who was not a party to the case in which the assailed judgment was rendered. Here, Rhea may avail of the remedy of annulment of judgment under Rule 47. The ordinary remedies of new trial, appeal and petition for relief were not available to her for the simple reason that she was not made a party to the suit against Allied (Villanueva v. Nite, G.R. No. 148211, July 25, 2006). 5. COLLATERAL ATTACK OF JUDGMENTS Q: What is a collateral attack on judgment? A: It is made 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 such judgment has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705). Q. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS Q: What is execution? A: It is a remedy provided by law for the enforcement or satisfaction of a final judgment. 1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION Q: What is meant by final judgment? A: 1.

The term “final” when used to describe a judgment may be used in two senses. In the first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. vs. Singson, 454 SCRA 612).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

In another sense, the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is commonly referred to as one that is final and executory.

1.

Note: 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 the ministerial duty of the court. Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007).

Q: Distinguish final judgments for purposes of appeal from final judgments for purposes of execution. 2. A: Final Judgments for purposes of appeal

Final Judgments for purposes of execution

Dispose of, adjudicate, or determine the right of the parties.

Becomes final and executory by operation of law. After lapse of period to appeal and no appeal was perfected, no further action can be had. Execution of judgment a matter of right.

Still subject to appeal

Execution of judgment not a matter of right.

2. WHEN EXECUTION SHALL ISSUE a. AS A MATTER OF RIGHT Q: When shall execution be issued? A: Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39)

3. 4.

A: GR: Execution of judgment is a matter of right on the part of the winning party. The court cannot refuse execution. XPN: 1. When the judgment has already been executed by the voluntary compliance thereof by the parties (Cunanan v. CA, G.R. No. L-25511, Sept. 28, 1968); Note: This is a situation where there is a satisfaction of the judgment without need for its execution by the court.

2.

3.

4.

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When the judgment has been novated by the parties (Dormitorio v. Fernandez, G.R. No. L-25897, Aug. 21, 1976); Note: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law (Art. 2028, NCC).

Q: When is an execution a matter of right? A: Execution will issue as a matter of right when:

Judgment debtor has renounced or waived his right to appeal; The period for appeal has lapsed without an appeal having been filed; Having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin (Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010).

Q: May the court which rendered the judgment refuse to issue writ of execution?

Q: How is an execution issued? A: Execution shall issue upon motion. Therefore, there is a need to file a motion for the issuance of a writ of execution. Even in judgments which are immediately executory, there must be a motion to that effect and a hearing called for that purpose. Also, under SC circular no. 24-94, a motion for the issuance of a writ of execution must contain a notice to the adverse party (Lou vs. Siapno, 335 SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1, 304 SCRA 440)

The judgment has become final and executory(Section 1, Rule 39);

When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. 5, Rule 38; When the judgment sought to be executed is conditional (Co Unjieng v. HijosMabalacat Sugar Co., G.R. No. L-

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

5.

6.

7.

32644, Oct. 4, 1930) or is incomplete (Del Rosario v. Villegas, G.R. No. L-25726, Nov. 22, 1926); When facts and circumstances transpire which would render execution inequitable or unjust (Bacharach Corp. v. CA, G.R. No. 128349, Sept. 25, 1998); When execution is sought more than 5 years from its entry without the judgment having been revived; When execution is sought against property exempt from execution under Sec. 13, Rule 39; or When the refusal to execute the judgment.

1.

2. 3. 4.

Q: Where should you file an application for discretionary execution? A: 1.

b. AS A MATTER OF DISCRETION Q: When is execution discretionary? A: 1. 2.

3.

4.

5.

Execution pending appeal; and While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal; When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; and When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court). Execution of several, separate or partial judgment(Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010)..

Note: As such exception, the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. “Good reasons,” has been held, to consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. Circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity (Florendov. ParamountInsurance Corp. (nowrenamed MAA General Insurance Inc.), G.R. No. 167976, Jan. 20, 2010).

Q: What are the requisites for discretionary execution? A:

There must be a motion filed by the prevailing party with notice to the adverse party; There must be a hearing of the motion for discretionary execution; There must be good reasons to justify the discretionary execution; and The good reasons must be stated in a special order (Sec. 2, Rule 39)

a. b.

2.

The motion for discretionary execution shall be filed with the trial court: While it has jurisdiction over the case and While it is in possession of either the original record or the record on appeal; or After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court (Bangkok Republic Company Limited vs. Lee, G.R. No. 159806, January 20, 2006).

Q: What is the remedy where the judgment subject to discretionary execution is reversed or annulled? A: The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39). Q: In a complaint filed by Granger for rescission and damages, the RTC ruled against JP Latex, defendant. On Aug. 5, 2006, Granger moved for the execution pending appeal of the decision. Upon receipt of the decision, JP Latex filed a motion for reconsideration (MR). The RTC granted the execution “pending appeal” without acting on the motion for reconsideration. Is the order of the trial court correct? A: No. Discretionary execution is allowed only when the period to appeal has commenced but before the trial court loses jurisdiction over the case. The period to appeal where a motion for reconsideration has been filed commences only upon the receipt of the order disposing of the MR. The pendency of a MR, therefore, prevents the running of the period to appeal. The MR filed by JP Latex had not been acted upon by the RTC before it ruled on the motion for execution “pending appeal.” The pendency of the MR has prevented the period to appeal from even commencing. The period within which a party may

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 move for an execution pending appeal of the RTC’s decision has not yet started. Thus, where there is pending MR, an order of execution pending appeal is improper and premature. (JP Latex Technology, Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, Mar. 16, 2009)

A: It may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom execution is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part (Sec. 3 Rule 39).

Q: How may a discretionary execution be stayed? 3. HOW JUDGMENT IS EXECUTED Q: How can a judgment be executed? A:

Judgment is executed by motion within 5 years from date of its entry

Execution is a matter of right after expiration of period to appeal and no appeal is perfected.

Discretionary execution upon good reasons stated in a special order after due hearing.

If the winning party does not move for execution within 5 years but before 10 years from the date of entry of judgment, the same can only be revived by means of new action / petition.

Sheriff executes writ of execution

Losing party is made to indemnify thru: 1. Payment with interest; 2. Levy and sale of personal property; 3. Levy and sale of real property; 4. Delivery of personal and/or real property. Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.

a. EXECUTION BY MOTION OR BY INDEPENDENT ACTION Q: What are the modes of execution of judgment? A: a.

b.

Execution by motion-if the enforcement of the judgment is sought within 5 years from the date of its entry; and Execution by independent action -if the five year period has elapsed and before it is barred by statute of limitations (Sec. 6, Rule 39)

Q: When is there a need to file an independent action for execution? A: There is a need for the prevailing party to file an independent action for the revival of the judgment before the action is barred by statute of limitations when a writ of execution is issued by motion of the

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prevailing party after 5 years from the date of entry of judgment, such motion is considered null and void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry vs. People, 314 SCRA 669) Q: Can execution be effected by motion after five years? A: GR:No, execution of a judgment can no longer be effected after 5 years. The remedy would be to file an independent action for the revival of the judgment. XPNs: The court in certain instances allowed execution of the judgment by mere motion despite the lapse of the 5 year period. In instances where the delay in the execution of the judgment were through causes attributable to the judgment debtor or when the delay is incurred for his benefit.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What is revival of judgment? A: This means that from the date of the finality of judgment, no motion was filed for the execution of said judgment, thus the need for its enforcement by action. Q: When should the action for revival of judgment be filed? A: The action to revive a judgment must be filed within 10 years from the date of judgment became final because an action to enforce a judgment prescribes in 10 years from the finality of the judgment.

Q: What are the defenses available in an action for enforcement? A: 1. Prescription; 2. Satisfaction of claim; and 3. Counterclaims. Q: Will execution issue upon death of a party? A: a.

b. Q: What is the nature of a revived judgment? A: A revived judgment is deemed a new judgment separate and distinct from the original judgment. Q: How do you enforce a revived judgment? A: A revived judgment may be enforced by motion within 5 years from the date of its entry and thereafter by action also before it is barred by the statute of limitations (Sec. 6, Rule 39). Q: May the period to execute the judgment be stayed? A: Yes: by agreement of the parties; by injunction; or by taking an appeal or writ of error. Q: What is the effect of an appeal to the execution of the judgment? A: GR: An appeal perfected in due time stays the execution of a judgment. XPNs: There are judgments which by express provision of law not stayed by appeal: 1.

Those judgments which by express provision of the rules are immediately executor and are not stayed by appeal (Sec. 4, Rule 39); Note: These are: judgment for injunction, receivership, accounting and support unless the court rule otherwise.

2.

Those judgments that have become the object of discretionary execution (Sec. 2, Rule 39).

Death of an obligee – execution will issue in any case, upon application of his executor, administrator, or successor-ininterest Death of an obligor - Death before levy: Action for recovery of real or personal property or any lien – execution will issue. Action for a sum of money – execution will NOT issue. The judgment obligee should file a claim against the estate of the judgment obligor under Rule 86 - Death after levy: Execution will issue against his executor, administrator, or successorin-interest because the property is already separated from the estate of the deceased and is deemed in custodia legis.

b. ISSUANCE AND CONTENT OF A WRIT OF EXECUTION Q: What is a writ of execution? A: It is a judicial writ issued to an officer authorizing him to execute the judgment of the court. Q: What is the lifetime of a writ of execution? A: The writ is enforceable within 5 years from the entry of judgment as provided for in Sec. 6 of Rule 39. Q: What are the contents of a writ of execution? A: 1. 2. 3. 4.

The name of the court which granted the motion; The case number; The dispositive portion of the judgment or order subject of the execution; and Shall require the sheriff or other proper officer to whom it is directed to enforce

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 the writ according to its terms (Sec.8, Rule 39) Note: The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation.

a.

b.

Q: Is a writ of execution subject to a motion to quash? A: A writ of execution may be quashed on certain grounds: 1. When the writ of execution varies the judgment; 2. When there has been a change in the situation of the parties making the execution inequitable or unjust; 3. When execution is sought to be enforced against a property exempt from execution; 4. When it appears that the controversy has never been submitted to the judgment of the court; 5. When the terms of the judgment are not clear enough and there remains room for interpretation thereof; 6. When it appears that the writ of execution has been improvidently issued; 7. When it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority (Reburiano v. CA, 301 SCRA 342). c. EXECUTION OF JUDGMENTS FOR MONEY Q: What are the 3 ways to enforce a judgment for money?

c.

Demand from the obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of payment acceptable to him. If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees. The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or con troll of third parties. This is called garnishment. (Sec. 9, rule 39)

Q: What is levy? A: It is the act by which an officer sets apart or appropriates a part of the whole of the property of the judgment debtor for purposes of the execution sale. Q: What is garnishment? A: It is the act of appropriation by the court when the property of the debtor is in the hands of third persons.

A: 1. 2.

3.

Immediate payment on demand Satisfaction by levy The judgment obligor exercises discretion to choose which property to levy; if not exercised, the officer shall levy first on personal property, then on real property. The sheriff shall only sell property sufficient to satisfy the judgment and other lawful fees. Garnishment of debts and credits.

Q: What are the steps in executing a judgment for money? A:

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Note: The garnishee or the third person who is in the possession of the property of the judgment debtor is deemed a forced intervenor.

Q: Distinguish attachment from garnishment. A: Attachment refers to corporeal property in the possession of the judgment debtor. Garnishment refers to money, stocks, credits and other incorporeal property which belong to the judgment debtor but is in the possession or under the control of a third person. (1999 Bar Question) Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently received

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE information that a bank holds a substantial deposit belonging to the judgment obligor. If the bank denies holding the deposit in the name of the judgment obligor but your client's informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit?

1.

Q: How is money judgment implemented if the obligee is absent at the time of payment?

In case of conveyance, if a party fails to comply with the time specified, the court may direct the act to be done at the cost of the disobedient party. In case of delivery or restitution of real properties, the officer shall demand the losing party to peaceably vacate the property within 3 working days, and restore possession to the judgment oblige; otherwise the officer shall oust such disobedient party. In case of removal of improvements on property subject of execution, the officer shall not destroy, demolish or remove improvements except upon special order of the court. In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided.

A: Sec. 9, Rule 39 lays down the procedure to be followed by the sheriff in implementing money judgments.

Q: How can judgment be executed for the following specific acts if the judgment debtor refuses/fails to comply therewith?

When the judgment obligee is not present at the time the judgment obligor makes the payment, the sheriff is authorized to receive it. However, the money received must be remitted to the clerk of court within the same day or, if not practicable, deposited in a fiduciary account with the nearest government depository bank. Sheriffs are not permitted to retain the money in their possession beyond the day when the payment was made or to deliver the money collected directly to the judgment oblige (Peña, Jr. v. Regalado II, A.M. No. P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P), Feb. 16, 2010).

A:

2.

A: A motion may be filed for a court order requiring the proper bank officer to appear in court for examination under oath as to such bank deposit, and subsequently move for a court order authorizing the filing of an action against such bank for the recovery of the judgment obligor’s deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest within 120 days from notice of the order (Secs. 37 and 43).(2008 Bar Question)

3.

4.

Judgments for Specific Act (Sec. 10) Conveyance, delivery of deeds, or other specific acts, vesting title. Sale of real and personal property

d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Q: What are considered specific acts? A: 1. 2. 3. 4. 5.

Conveyance, delivery of deeds, or other specific acts vesting title; Sale of real or personal property; Delivery or restitution of real property; Removal of improvements on property subject of execution; and Judgments for the delivery of personal property.

Q: What are the steps in executing a judgment for specific acts? A:

Delivery or restitution of real property

Removal of improvements on property subject of execution Delivery of personal property

Manner of Execution Court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it. Sell such property and apply the proceeds in conformity with the judgment. If the party refuses to deliver, a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a haberefaciaspossesionemand authorizes the sheriff to break open the premises where there is no occupant therein. If party refuses to vacate property, remedy is not contempt. The sheriff must oust the party. But if demolition is involved, there must be a special order. The officer may destroy, demolish or remove the improvements upon special order of the court, issued upon motion of the judgment obligee. The officer shall take possession and deliver to the party entitled thereto.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: May a judgment debtor be cited in contempt in case of refusal to comply with judgment of the court?

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).

A: GR: The judgment debtor cannot be cited in contempt of court. Generally, contempt is not a remedy to enforce a judgment. XPN: 1. Refusal to perform a particular act or special judgments under Sec. 11 where he may be cited in contempt. 2. In case of the provisional remedy of support pendente lite under Rule 61, the judgment debtor may still be cited for contempt even if the decision is not a special judgment and requires the latter to pay money. Note: If a party refuses to: a. Vacate the property – the sheriff must oust the party. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. b. Deliver – the sheriff will take possession and deliver it to the wining party c. Comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it.

e. EXECUTION OF SPECIAL JUDGMENTS Q: What is a special judgment? A: It is a judgment that can be complied with only by the obligor himself. It requires the performance of any other act other than payment of money, or the sale or delivery of real or personal property. Q: What is the effect of failure to comply with special judgments? A: Failure to comply with special judgment under Section 11 is punishable by contempt by imprisonment. Q: How is execution of special judgments executed? A: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

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f. EFFECT OF LEVY ON THIRD PERSON Q: What is the effect of levy on execution as to third persons? A: It creates 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). Q: Aiza obtained a judgment for money against Bert. The sheriff enforcing the corresponding writ went to Celywho, is the pledgee of a ring Bert had given as security for a loan and insisted on taking possession of the ring for the purpose of eventually selling it at the execution sale to satisfy the judgment debt of Bert to Aiza. Does Cely have the obligation to surrender the ring to the sheriff? Explain. A: No, because Cely has the right to retain the ring in his possession until the loan is paid (Art. 2098, NCC). If the sheriff should take possession of the ring, Cely may file a third-party claim. (1987 Bar Question) Q: What are the remedies available to a thirdparty claimant in levy of real property? A: 1. 2. 3. 4.

Summary hearing before the court which authorized the execution; Terceriaor third party claim filed with the sheriff; Action for damages on the bond posted by judgment creditors; or Independent reinvindicatory action. (Sec. 16, Rule 39)

The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others. Note: The officer shall not be liable for damages for the taking or keeping of the property, to any thirdparty claimant if there is a bond filed by the winning party. If there is no bond, the sale cannot proceed. However, the judgment obligee can claim damages against a third-party claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the same or separate action (Sec. 16, Rule 39).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What are other properties ESPECIALLY exempt from execution? 4. PROPERTIES EXEMPT FROM EXECUTION A: Q: What are the properties exempt from execution? A: 1.

2.

3.

4. 5.

6. 7.

8.

9.

10. 11.

12.

13.

The judgment obligor’s family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; Ordinary tools and implements personally used by him in his trade, employment or livelihood; 3 horses, cows, or carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; His necessary clothing and articles for ordinary personal use, excluding jewelry; 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 P100,000; Provisions for individual or family use sufficient for 4 months; The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding P300,000 in value; 1 fishing boat and accessories not exceeding the total value of P100,000 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 4 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; and Properties specially exempted by law.

But no article or species of property mentioned above shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon (Sec. 13).

1.

Property mortgaged to DBP (Sec 26, CA 458) 2. Property taken over by Alien Property Administration (Section 9[f], US Trading with the Enemy Act) 3. Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4. Backpay of pre-war civilian employees (RA 304) 5. Philippine Government backpay to guerillas (RA 897) 6. Produce, work animals, and farm implements of agricultural lessees, subject to limitations (Sec 21, RA 6389) 7. Benefits from private retirement systems of companies and establishments, with limitations (RA 4917) 8. Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance (Art 1708, NCC) 9. Benefit payments from the SSS (Sec 16 RA 1161 as amended by PDs 24, 65, and 177) 10. Copyrights and other rights in intellectual property under the former copyright law (PD 49 cf Sec 239.3, RA 8293); and 11. Bonds issued under RA1000 (NASSCO v. CIR L-17874 31 August 1963) (Regalado, F. th Remedial Law Compendium Vol. 1, 9 ed., pp. 481-482) 5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS Q: When can you file a third party claim? A: At any time, so long as the sheriff has the possession of the property levied upon, or before the property is sold under execution. Q: What are the requisites for a claim by a third person? A: Requisites for a claim by a third person: 1. 2. 3.

4.

The property is levied; The claimant is a person other than the judgment obligor or his agent; Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title; and Serves the same upon the officer making the levy and the judgment obligee.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is the procedure for a 3rd party claim? A: 3rd party should make an affidavit of his title thereto, or right of possession thereof, and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. Q: What is the duty of the officer if the property sought to be levied on is claimed by another person and proper proof of ownership or possession is served upon the officer making levy? A: If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. Q: Allen obtained a money judgment against Bob. After the finality of the decision, the court issued a writ of execution for the enforcement thereof. Conformably with the said writ, the sheriff levied upon certain properties under Bob's name. Cathy filed a third-party claim over said properties claiming that Bob had already transferred the same to him. Allen moved to deny the third-party claim and to hold Bob and Cathy jointly and severally liable to him. After due hearing, the court denied the third-party claim and rendered an amended decision declaring Bob and Cathy jointly and severally liable to Allen for the money judgment. Is the ruling of the court correct'? Explain.

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A: No, Cathy has not been impleaded as a party defendant. He cannot be held liable for the judgment against Bob without a trial. In fact, since no bond was filed by Allen, the sheriff is liable to Cathy for damages. Cathy can file a separate action to enforce his third-party claim. It is in that suit that Allen can raise the ground of fraud against Cathy. However, the execution may proceed where there is a finding that the claim is fraudulent (Tanongan v. Samson, G.R. No. 140889, May 9, 2002). (2005 Bar Question) Q: If the writ of execution is issued in the name of the Republic of the Philippines and the property object of the levy is being claimed by a third person, is there a necessity for filing a bond? A: When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. a. IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN Certain remedies available to a third person not party to the action but whose property is the subject of execution: 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 and to return the same to the third person. In resolving the application, the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

3.

4.

court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356). Intervention – This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19). Accion Reinvindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case. 6. RULES ON REDEMPTION

Q: Is the right of redemption available to any type of property? A: No. There is no right of redemption as to personal properties for the sale is absolute. Such right is available only to real properties. Q: Distinguish a judgment obligor from a redemptioner? What are their rights as regards redemption of real property? A: JUDGMENT OBLIGOR

Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors)

Within 1 year from the date of registration of the certificate of sale.

REDEMPTIONER One who has a lien by by virtue of an attachment judgment, judgment, or mortgage on the property sold, SUBSEQUENT to the lien under which the property was sold (Sec. 27) Note: If creditor’s lien is prior to the judgment, he is not a redemptioner because his interests in his lien are fully protected. 1. Within 1 year from the date of registration of the certificate of sale if he is the first redemptioner, or 2. Within 60 days from the last redemption, if he be a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption.

Once he redeems, no further redemption is allowed. The person to whom redemption was made must execute and deliver to the judgment obligor a certificated of redemption.

Further redemption is allowed, even after lapse of 1 year, as long as each redemption is made within 60 days after the last.

Note: The period of redemption is not suspended by an action to annul the foreclosure sale. The periods for redemption are not extendible; but the parties may agree on a longer period, in such case, it would be a conventional redemption. Note: A surety is not a successor in interest. The right of redemption cannot be levied on by judgment creditor.

Q: Can redemption be made in other forms than cash? A: Yes. The rule is liberal in allowing redemption and it has been allowed in the case of a cashier’s check and certified bank checks. Q: Who may redeem the real property sold? A: Real property sold, or any part thereof sold separately, may be redeemed by the following persons: 1. Judgment obligor, or his successor in interest in the whole or any part of the property; 2. Redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Note: A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment. Generally in judicial foreclosure sale, there is no right of redemption, but only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption.

Q: What are the requirements to enable the redemptioner or judgment obligor to redeem the real property? A: The judgment obligor, or redemptioner, may redeem the property from the purchaser at any

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 time within 1 year from the date of the registration of the certificate of sale by paying the purchaser: 1. the amount of his purchase; 2. amount of any assessments or taxes which the purchaser may have paid after purchase; 3. if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien; and 4. With 1 percent per month interest up to the time of redemption.

2. 3. 4.

Reversal or setting aside of judgment; The fact that the property was exempt from execution; or If a third person has vindicated his claim to the property (Sec. 34).

Q: What is the remedy of purchaser of real property sold on execution in the above situations? A: 1.

Q: Is the bona fide tender or delivery of the redemption price required in offer to redeem?

2. A: 3.

GR: The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price. XPN: The right to redeem is exercised through the filing of a complaint to redeem in the courts. Q: What are the rights of a judgment debtor?

7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED Q: What is the effect when the judgment was returned unsatisfied? A: 1.

A: 1.

2.

3. 4. 5.

To remain in possession of the property until the expiration of period of redemption; To collect rents and profits until the expiration of period of redemption (Sec. 32); To use the property in the same manner it was previously used; To make necessary repairs; and Use it in the ordinary course of husbandry (Sec. 31).

2.

3.

Q: When is the purchaser entitled to possession and conveyance of the property sold on execution?

4.

A: The purchaser is entitled to possession and conveyance of the property if no redemption is made within one (1) year from the date of the registration of the certificate of sale (Sec. 33).

5.

Q: What are the instances when the purchaser may recover the purchase price from the judgment obligor? 6. A: 1.

2.

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If the purchaser or his successor-ininterest fails to recover possession of the property sold on execution sale; or Is evicted due to: 1. Irregularities in the proceedings concerning the sale;

Bring an action against the judgment creditor; File a motion for revival of judgment in his name against the judgment debtor; or Bring an action to recover possession of property.

The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 36) (2008 Bar Question); 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); 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); 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); 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); 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 controversy, the court may order the sale of such interest (Sec. 42); and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 7.

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).

Q: Anna, a Manila resident, sued Betsie resident of Malolos, Bulacan, in the RTC Manila for a sum of money. The trial court rendered judgment holding Anna liable for the entire amount prayed for in the complaint. After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, Anna filed a motion for an order requiring Betsie to appear before it and be examined regarding his property and income. How should the court resolve the motion? A: The RTC Manila should deny the motion. Betsie resides in Malolos, Bulacan. When a writ of execution is returned unsatisfied, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it. However, no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (Sec. 36). (2002 Bar Question) 8. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR Q: How is examination of obligor of judgment obligor done? A: Court may order to be examined any person or corporation who has property of the debtor in order to bind the credits due to debtor. Note: The garnishee becomes a forced intervenor, requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). Note: A party or other person may be compelled, by an order of subpoena, to appear before the court or commissioner to testify as provided in Sec 36 & 37. Failure to obey may be punished by contempt. If examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers must be under oath.

9. EFFECT OF JUDGMENT OR FINAL ORDERS

A: 1.

2.

3.

4.

5.

If judgment or final order is on a specific thing, the same is conclusive upon the title to thing (Sec. 47, Rule 39). With respect to a probate of a will, or the administration of the estate of a deceased person, the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death (Sec.47, Rule 39). With 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 condition, status or relationship (Sec.47, Rule 39). In other cases, if the judgment be with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, the judgment or final order is 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 the same capacity, relationship (Sec.47, Rule 39). In any other litigation between the same parties or their successors in interest, that only is deemed to be adjudged in a former judgment or final order which appear upon its face to have been adjudged, or which was actually and necessarily included therein or necessary thereto (Sec.47, Rule 39).

Q: When the judgment is final and executory, is it always ministerial upon the court to order execution? A: GR: Trial Court has ministerial duty to order execution of final and executor judgments. It cannot refuse execution and is compellable by mandamus. XPN: (Same as grounds to Quash writ of execution) 1. Change in the situation of the parties which makes the execution inequitable or unjust; 2. Writ of execution varies judgment; 3. Controversy was never submitted to the judgment of the court; 4. Execution is sought against property exempt from execution;

Q: What is the effect of final judgments? ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5.

Terms of the judgment are not clear and leaves room for interpretation; 6. Writ of execution is improvidently issued; 7. Writ of execution is defective in substance; 8. Writ of execution is issued against the wrong party; 9. Judgment debtor has been paid or otherwise satisfied; and 10. Writ of execution was issued without authority. Note: In the above exceptions, remedy is certiorari (Rule 65)

Q: When may execution of final and executory judgment be enjoined? A: 1. 2.

3. 4.

Upon fling of a petition for relief from judgment; Attack against a judgment which is void for lack of jurisdiction, or obtained through fraud; On equitable grounds; and In cases falling under the 10 exceptions above.

Q; Discuss the effect of judgment under paragraph A and B of Section 47 A: In Rem (Par. a) The decision is conclusive upon the title of the thing, the will or administration or the condition, status or relationship of the person. i.e. land registration cases

Q: What are the requisites of res judicata? A: 1. 2. 3. 4.

Note: judgment for support is not final in a sense that it cannot be modified. Support depends not only on the varying conditions affecting the ability of the oblgor to pay, but also upon the ever-changing needs of the beneficiary himself.

A: GR: Final and executor judgments cannot be amended or modified. Any amendment which substantially affects a final and executor judgment is null and void for lack of jurisdiction. XPN: Judgment may be modified as to: 1. Clerical errors or mistakes - errors not as a result of exercise of judicial functions 2. To clarify ambiguity; or 3. To enter nunc pro tunc orders – to make a present record of an order which the court rendered at a previous terms but, by inadvertence has not been entered.

i.e. actionreinvindicatoria

Note: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact. (par. 4, Sec. 48)

Note: Judgment novated by a subsequent agreement cannot be executed (e.g. agreement entered into by the parties other than terms of payment).

Q: Can final and executory judgments be modified?

In Personam (Par. b) The judgment or final order is conclusive between parties and their successors-in-interest, litigating for the same thing and under the same title and in the same capacity.

Former judgment or order must be final and executory; Court has jurisdiction over subject matter and parties; Former judgment or order was on merits; and Identity of parties, subject matter, and cause of action between first and second action. (TEST: determine identity if cause of action)

10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS Q: What is the effect of a foreign order? A: 1. 2.

Against a specific thing – conclusive upon title to the thing. Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

Note: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud, or clear mistake of law or fact.

Q: How is a foreign judgment enforced? A: By filing an action based on said judgment; foreign judgment is presumed to be valid and binding. Note: to recognize a foreign judgment, raise the foreign judgment as res judicata in the defense (not in a separate motion)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

R. PROVISIONAL REMEDIES Q: Distinguish the different kinds of provisional remedies. A: Preliminary Attachment (Rule 57)

Preliminary Injunction (Rule 58)

Receivership (Rule 59)

Replevin (Rule 60)

Support Pendente Lite (Rule 61)

Subject Matter Personal and real property

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

Personal property capable of manual delivery Jurisdiction (Court which can grant it)

Particular act(s)

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

Personal and real property

Money or other forms of support

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

GR: Family Court XPN: In criminal actions, as long as the civil aspect is tried together with it , the RTC or MTC having jurisdiction may also issue this remedy.(e.g Art. 345 (3) RPC, in crimes against chastity, “In every case to support the offspring..”)

RTC, Family Court, Metropolitan, Municipal, and Municipal Circuit Trial Courts

Who may grant it Court where action is pending, the CA or Only the Court where the SC, or a member Courts where the action is pending; thereof, even if action action is pending, Lower court, CA or SC is pending in the Only the court the CA or the SC provided action is lower court. where action is (Sec. 2) pending in the same Appellate court may pending. court which issues the allow application for injunction (Sec. 2) receivership to be decided by the court of origin (Sec. 1) When available At any stage of the At the At any stage of the At any stage of the proceeding and even commencement action but before action but before after finality of of the action but entry of final judgment or final order judgment; anytime before answer is judgment (Sec. 1) (Sec. 1) prior to satisfaction of filed (Sec. 1) judgment How applied for File verified application File verified and applicant’s bond; if application and application is included in applicant’s bond; the initiatory pleading, application may also File affidavits and File affidavits and the adverse party should be included in applicant’s bond applicant’s bond be served with summons initiatory pleading in (Sec. 3) (Sec. 2) together with a copy of actions for the initiatory pleading and foreclosure of the applicant’s affidavit mortgage (Secs. 1 and and bond (Sec.4) 2) Purpose(s) 1. To seize the To require a party or a To place the To recover property of the court, agency or a property subject of possession of adverse party in person to refrain from an action or personal

Court of origin and appellate court. (Ramos v. CA, GR No. L-31897, June 30, 1972)

At the commencement of the action or at any time prior to the judgment or final order (Sec. 1)

File verified application; bond not required (Sec. 1)

To compel adverse party to provide support while the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

advance for the satisfaction of judgment that may be recovered in cases falling under Sec.1, Rule 57. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. (Quasha v. Juan,G.R.No.L54158, Nov. 19, 1982)

1. GR: In an action for the recovery of a specified amount or damages. XPN: a. moral and exemplary b. against a party who is about to depart from the Philippines with intent to defraud his creditors; 2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person; 4. In an action against a party who has been guilty of fraud in contracting the debt or incurring the

114

doing a particular act or to require the performance of a particular act To prevent future injury and maintain the status quo. (Kencht v. CA, G.R. No. 97962, Nov. 17, 1993)

1. That the applicant is entitled to the relief demanded which consists in restraining the commission or continuance of the act complained of, or in requiring the performance of an act for a limited period or perpetually 2. Commission, continuance or nonperformance of the act during the litigation would probably work injustice to the applicant; or 3. Party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual (Sec. 3)

proceeding under the control of a third party for its preservation and administration litis pendentia and to protect the rights of all the parties under the direction of the court.

Ground(s) 1. When the 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; 2. In foreclosure of mortgage, when the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties; 3. 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 execution has been returned unsatisfied of the judgment obligor refuses to apply

property. (1999 Bar Question)

Applicant is: 1. The owner of the property claimed; or 2.

Entitled to the possession thereof but the property is wrongfully detained by the adverse party (Sec. 2)

action is pending in court.

When equity and justice require, having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support pendente lite

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE obligation or in its performance 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

his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; or 4. When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation (Sec. 1). Whether principal or ancillary action

Ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Ancillary to: 1. Action for support; or 2. In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing.

During the pendency of the case unless the defendant files a redelivery bond.

During the pendency of the case.

Not required ; may be issued ex parte

Required – Within 3 days after comment is filed or after expiration of period of filing

Effectivity During the pendency of the case unless earlier discharged or quashed by the court

During the pendency of the case unless earlier discharged or quashed by the court

Until discharged by the court

Requirement of Hearing GR: Required XPN: Great or Not required; may be irreparable injury would issued ex parte (2001 result / extreme urgency Required Bar Question) and applicant will suffer grave injustice and irreparable injury (Sec. 5) Bond Requirement Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages that he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59 ) 2 bond requirement for receivership: 1. Filed by the applicant; and 2. Filed by the receiver.

Bond executed to the adverse party in double the value of the property, for the return of the property to the adverse party if such return be adjudged and for the payment to the adverse party of such sum as he may recover from the applicant in the action (Sec. 2)

Immediately Executory Yes No Discharge of Remedy By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge No

Yes

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

No bond required.

Yes Not applicable.

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UST GOLDEN NOTES 2011 of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action. Counter Bond Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable Amount of Amount of counterCash deposit may be damage to the party or counter-bond to bond should be made in lieu of the person enjoined while the Not applicable. be fixed by the double the value of counter-bond (Sec. 12) applicant can be fully court (Sec. 3) the property (Sec. 5) compensated for such damages as he may suffer; counter-bond alone will not suffice to discharge the injunction (Sec. 6) Other Grounds For Discharge 1. Improper or irregular issuance or enforcement or 1. Plaintiff’s bond is 1. Appointment insufficiency of bond. found to be 1. Insufficiency of the was obtained (Sec. 13) insufficient or application (Sec. 9) without 2. Judgment rendered defective and is sufficient cause. against attaching not replaced with 2. Other grounds (e.g. creditor (Sec. 19) proper bond; or applicant’s bond is 2. Bond posted by 3. Property attached is insufficient/ defective), the applicant / exempt from execution 2. Property is not upon affidavits of the receiver is (Sec. 2 & 5) delivered to the party or person insufficient (Sec. 4. Attachment is plaintiff for any enjoined 3). excessive, but the reason (Sec. 6). discharge shall be limited to the excess (Sec. 13). Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy When the judgment or final order finds that the person who has been Requisites: providing support 1. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not before judgment becomes executory an application for damages; liable therefor, the court 2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient to damages and amount thereof; and to return the amounts 3. Such damages may be awarded only after proper hearing and shall be included in the already received with judgment of the main case. interest from the date of actual payment, without If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of remedy was effected: the recipient to obtain Application must be filed with the appellate court before the judgment of the reimbursement in a appellate court becomes executory. Appellate court may allow application to be heard separate action from and decided by the trial court. the person legally obliged to give support. If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: If the recipient fails to Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. reimburse the amount, 9, Rule 59; Sec. 10, Rule 60) the person who . provided the same may Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a recovered in the same case. The recovery of damages cannot be had in a separate action. separate action from the person legally obliged to give such support (Sec. 7)

116

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

1. NATURE OF PROVISIONAL REMEDIES

d. Production Order (Riano, Civil Procedure: A Restatement for the Bar, p. 534-536, 2009 ed.)

Q: What are provisional remedies? A: Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for the purpose of the ultimate effects, of a final judgment in the case. Q: What is the nature of provisional remedies? A: 1. 2.

Temporary measures availed of during the pendency of the action Mere incidents and are dependent upon the result of the main action

Q: What are the purposes of provisional remedies? A: Provisional remedies are resorted to: 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; 4. To preserve the subject matter of the action.

2. JURISDICTION OVER PROVISIONAL PROVISIONAL REMEDIES Q: Which court has jurisdiction over applications for provisional remedies? A: GR: Applications must be filed with the court having jurisdiction over the pending principal action. Even an inferior court may grant such remedy, however, where the main action is for support, the provisional remedy of support pendente lite may not be granted by a Municipal Trial Court because the main action is within the jurisdiction of the Family Court. (Riano, Civil Procedure: A Restatement for the Bar, p. 532, 2009 ed.) XPN: in criminal actions, as long as the civil aspect is tried together with it, the RTC or MTC having jurisdiction may also issue the remedy of Support pendent Lite. (e.g. Art 345 (3) RPC, in crimes against chastity, “in every case to support the offspring…”) Q: When are these provisional remedies available? A: 1.

Q: What are the Provisional Remedies under the Rules of Court? 2. A: 1. 2. 3. 4. 5.

Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61)

Q: What are the Other Provisional Remedies available? A: 1. 2. 3.

4. 5.

Temporary custody over a minor Deposit in Actions for Annulment of Sale (Reyes v. Lim) Restraining order against the accused in cases of violence among immediate family members living in the same domicile and household Hold departure orders issued by Regional Trial Courts in criminal cases Interim reliefs under Writ of Amparo a. Temporary Protection Order b. Witness Protection Order c. Inspection Order

3.

Attachment, injunction and support pendent lite – may be applied for before final judgment Replivin – may be applied before the answer Receivership – may be applied for at any stage of the action and even after final judgment. 3. PRELIMINARY ATTACHMENT

Q: What is Preliminary Attachment? A: It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant for the same to 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). Note: This is only an ancillary remedy. There is no separate action called preliminary attachment. It is not a distinct proceeding and is availed of within a principal action because it is a mere provisional remedy. The grant of remedy is addressed to the discretion of the court. (Riano, Civil Procedure: A Restatement for the Bar, p. 537, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is attachment?

the

purpose

of

preliminary

Q: What are the kinds of attachment? A:

A: Preliminary attachment is designed to: 1. seize the property of the debtor before final judgment and put the same in custodialegis even while the action is pending for the satisfaction of a later judgment (Insular Bank of Asia and America v. CA, 190 SCRA 629); or

1.

2. 2. to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected (Philippine Commercial International Bank v. Alejandro, 533 SCRA 738). Q: Who may apply for a preliminary attachment? A: It is not only the plaintiff who may apply for a writ of preliminary attachment. A defendant who asserts a counterclaim, a cross-claim or a thirdparty claim may also avail of the remedy. Sec. 1 of Rule 57 provides that the “plaintiff or any proper party may have the property of the adverse party attached.” (Borja v. Platon, 73 Phil. 659) (Riano, Civil Procedure: A Restatement for the Bar, p. 538, 2009 ed.)

3.

Preliminary attachment- one 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. Garnishment- the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the garnishee, to his claim or the money in which said third person owes the defendant (RCBC v. Castro, No. L- 34548, November 29, 1988). Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. Levy on execution- 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.

Q: Distinguish Preliminary attachment from Final attachment.

Q: What is the nature of the proceeding? A: A: Attachment is in the nature of proceeding quasi in rem (Banco- Espanol Filipino v. Palanca, 37 Phil 921) although sometimes referred to as an actionin rem (Valdemieso v. Damalerio, 451 SCRA 638, February 17, 2005). Note: 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 jurisdication over the res (Biaco v. Countryside Rural Bank, 515 SCRA 106).

Q: Once prayed for, is it mandatory that the court grant the writ of preliminary attachment? A: The grant of preliminary attachment is addressed to the sound discretion of the court. Q: What is the effect if a preliminary action is availed of and is granted in an action purely in rem? A: When availed of and granted in an action purely in personal, it converts the action to one that is quasi in rem. This transformation of the nature of the action dispenses with the need of acquiring jurisdiction over the person of the defendant.

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PRELIMINARY ATTACHMENT (Rule 57) It is an auxiliary remedy to give security for a judgment still to be rendered. There is no sale because the decision has not yet been rendered. Resorted to at the commencement of the action or at any time before the entry of judgment, for the temporary seizure of the property of the adverse party The proceeds of the sale, in cases allowed, are in custodial egis (Sec. 11)

FINAL ATTACHMENT (Rule 39) It is a means for the execution of a final judgment. It should always be accompanied by a sale at public auction. Available after the judgment in the main action had become executor, and for the satisfaction of said judgment.

The proceeds of the sale are turned over to the attaching creditor

a. GROUNDS FOR THE ISSUANCE Q: What are the groundsfor the issuance of a writ of preliminary attachment? (When is a Preliminary Attachment Proper?)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A:

b. 1.

2.

3.

4.

5.

6.

Actions for the recovery of a specified amount of money or damages XPN: o moral and exemplary damages o against a party who is about to depart from the Philippines which intent to defraud his creditors Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty Actions to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person Actions against a party who has been guilty of a fraud in contracting the debt or incurring or performance the obligation upon which the action is brought Actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors Actions against non-residents not found in the Philippines, or person upon whom summons may be served by publication

Note: Insolvency of defendant is not a ground for attachment especially when defendant has not been shown to have committed any act intended to defraud its creditors (Spouses Yu v. Ngo Yet Te, G.R. No. 155868, February 6, 2007).

b. REQUISITES Q: What are the requisites in the application for a writ of preliminary attachment? A: 1.

2.

3.

Filed at the commencement of action or any time before entry of judgment (Sec. 1, Rule 57) Application by any party and affidavit showing: (Sec. 3, Rule 57) a. Sufficient cause of action b. Based on grounds mentioned in Section 1 c. No other sufficient security d. Amount due to applicant or value of property he is entitled to recover Filing of a bond (Sec. 4, Rule 57): a. Executed in favor of an adverse party in an amount fixed by court

To answer for all costs and damages

Note: No notice to the adverse party or hearing is required as the time which the hearing will entail could be enough to enable the defendant to abscond or dispose of his property before the writ issues (Regalado, Remedial Law Compendium, Vol I, p. 624, 2007 ed.).

Q: When may an order for preliminary attachment be applied? A: The writ may be applied: 1. At the commencement of the action, or 2. At any time before entry of judgment (Sec. 1, Rule 57). c. ISSUANCE AND CONTENTS; AFFIDAVIT AND BOND Q: When may an order of attachment be issued and what should be contained therein? A: (Sec. 2, Rule 57): 1. May be issued ex-parte or 2. upon motion after notice and hearing Requiring sheriff to attach as much property which is not exempt from execution, as may be sufficient to satisfy the judgment Q: What should the affidavit contain? A: The Affidavit of the applicant, or some other person who personally knows the facts, must show that: 1. sufficient cause of action exists; 2. the case is one of those mentioned in Section 1; and 3. there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due 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. Q: What is the basis of the bond’s amount? A: The bond shall answer for: 1. All the costs which may be adjudged to the adverse party; and 2. All damages which he may sustain by reason of the attachment. Q: How may the writ be issued? A: The writ of preliminary attachment may be granted by:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

119

UST GOLDEN NOTES 2011 1.

2.

By motion and notice of hearing by the court in which the action is pending and may even be issued by the CA or the SC (Sec. 2, Rule 57); It may also be issued ex parte and even before summons is served upon the defendant. However, the writ may not be enforced and may not validly implemented unless preceded by a service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co., Inc. v. CA, 204 SCRA 343).

Q: What is the rationale for allowing the ex parte issuance of a writ of preliminary attatchment? A: An ex parte issuance of the writ is intended to preempt any possible disposition of property by the adverse property to the detriment of the attaching creditor and thus defeat the very purpose of attachment (Mindanao Savings & Loan Association, Inc. v. CA, 172 SCRA 480). Q: Alfred filed an action against Banjo for collection of sum of money with an ex-parte application for a writ of preliminary attachment which was granted by the trial court. A notice of garnishment was served by the sheriff upon the bank and summons was subsequently served upon Banjo. Banjo then filed a motion to dissolve the writ of preliminary attachment on the ground that the court did not acquire jurisdiction over his person as the writ was served ahead of the summons. Resolve the motion. A: The motion should be denied. The fact that the writ of preliminary attachment was served ahead of the summons did not affect the jurisdiction of the court over his person. It makes the writ unenforceable, however, all that is required is to reserve the writ. (2005 Bar Question) Note: Where the writ of preliminary attachment had already been implemented, the subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. (Torres v. Satsatin, G.R. No. 166759, November 25, 2009)

d. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE Q: What is the Rule on Prior or Contemporaneous Service of Summons? A: Enforcement of the writ of preliminary attachment must be preceded by or simultaneously

120

accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party. Jurisdiction must first be acquired through valid service of summons first before a preliminary attachment may be enforced. This Rule is not necessary for the validity of the ISSUANCE of a writ of attachment (Davao Light v. CA, 204SCRA 343 (1991)), it is however necessary for the validity of the ENFORCEMENT of the writ. (Onate v. Abrogar, 241 SCRA 659 (1995)) Q: What are the cases in which contemporaneous service is not required? A: The requirement of prior or contemporaneous service of summons shall not apply where: a. the summons could not be served despite diligent efforts; b. the defendant is a resident of the Philippines temporarily absent therefrom; c. the defendant is a non-resident of the Philippines; or d. The action is in rem or quasi in rem (Sec. 5, Rule 57). e. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY Q: How can a property be attached? A: (Sec. 7, Rule 57) 1. Real property, growing crops or interest therein a. File a copy of the Order of Attachment with the proper Registry of Deeds and Occupant or his agent within the province b. Description of the property c. Notice of attachment 2. Personal property capable of manual delivery – sheriff taking into custody and safely keeping it, he wll issue a receipt; 3. Stocks, shares or interest – Leaving copy of the writ and notice of attachment with President or Managing Agent 4. Debts and credits, bank deposits, financial interests, royalties, commission and other personal property not capable of manual delivery - Leaving copy of the writ and notice of attachment with person owing or having custody over the property 5. Interest in the estate of a decedent – Leaving copy of writ and notice of attachment with: a. Executor or administrator of estate b. Clerk of Court where estate is being settled

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

6.

c. Heir, devisee, or legatee; Property in custodialegis – writ to the court or agency and notice to custodian.

A: 1.

Q: What remedies are available if property is being claimed by a third person? A: 1. 2. 3.

File a Third Party Complaint or terceria (Sec. 14, Rule 57) File a Motion for Intervention File an independent action to recover property

f. DISCHARGE OF ATTACHMENT OF ATTACHMENT AND COUNTERBOND Q: How is attachment discharged? A: 1.

If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. Note: This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a cash deposit or files a counter- bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment exclusive of costs (Sec. 12, Rule 57).

2.

Attachment may likewise be discharged without the need for filing of a counterbond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion he proves that: a. The attachment was improperly or irregularly issued or enforced (Sec. 13, Rule 57); b. That the bond of the attaching creditor is insufficient or that the attachment is excessive and must be discharged as to the excess (Sec. 13, Rule 57); c. That the property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2, Rule 57).

Q: What are the grounds for the discharge of a preliminary attachment?

2. 3.

It must be based on the following grounds: a. Writ was improperly or irregularly issued or enforced (Sec. 13, Rule 57) b. Insufficiency of bond (Sec. 13, Rule 57) c. Excessive attachment (Sec. 13, Rule 57) o Effect: Partial discharge (Regalado, Remedial Law Compendium, Vol. I, p. 683, 2005 ed.) d. No ground for attachment (Sec. 1, Rule 57) e. Property is exempt from execution (Secs 2 and 5, Rule 57) f. Judgment is rendered against the attaching creditor (Sec. 19, Rule 57) g. Dissolution of attachment 1 month next preceding the commencement of insolvency proceedings (Insolvency Law) (Feria, Civil Procedure Annotated, Vol. II, p. 305, 2001 ed.) Filing of a cash deposit or counterbond (Sec. 12, Rule 57) Notice and Hearing (Sec. 12, Rule 57)

Q: May an ex parte discharge of attachment be allowed? A: No. A discharge of attachment must be made only after hearing. Q: What is a counterbond? A: Counterbonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment (Security Pacific Assurance Corporation v. Tria- Infante, 468 SSCRA 526). Q: After Defendant AAA’s properties were attached, AAA filed a sufficient counterbond and the trial court discharged the attachment. For having suffered substantial prejudice due to the unwarranted attachment, the trial court rendered a judgment ordering plaintiff to pay damages since the latter was not entitled to the attachment. AAA moved to charge plaintiff’s attachment bond and such was objected to by the plaintiff and his sureties on the ground that the counter-bond lifted plaintiff’s attachment bond from all liability. Rule on AAA’s motion. A: AAA’s motion should be granted since the filing of a counterbond does not constitute a waiver of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

121

UST GOLDEN NOTES 2011 his right to proceed against the attachment bond. Furthermore, it is a condition in an attachment bond that applicant will pay all the costs and damages which may be adjudged to the adverse party. (DM Wenceslao and Associates, Inc. v Readycon Trading and Construction Corp., G.R. No. 154106, June 29, 2004) g. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED Q: How can the judgment be satisfied out of the attached property? A: (Sec. 15, Rule 57) 1. Payment to judgment creditor of all sales of perishable or other property 2. If any balance remains, selling property as may be necessary to satisfy the judgment 3. Collecting from all persons having possession of credits belonging to the judgment debtor and paying the proceeds to judgment creditor Note: If it remains unsatisfied, recovery may be had on the counterbond upon demand and notice and hearing to surety (Sec. 17, Rule 57).

Q: What is the order of satisfaction of judgment of attached property? A: Order of satisfaction of judgment of attached property: 1. Perishable or other property sold in pursuance of the order of the court; 2. Property, real or personal, as may be necessary to satisfy the balance; 3. collecting from debtors of the judgment obligor;

4.

Ordinary execution. 4. PRELIMINARY INJUNCTION

a. DEFINITION AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER Q: What is an injunction? A: It is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. (Riano, Civil Procedure: A Restatement for the Bar, p. 564, 2009 ed.) Q: Distinguish a main action for injunction from a preliminary injunction (2006 Bar Question). A: INJUNCTION AS AN ANCILLARY REMEDY Exist as an incident to a principal action Seeks 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 (CortezEstrada v. Heirs of Domingo Samut, 451 SCRA 275, February 14, 2005).

INJUNCTION AS A MAIN ACTION Independent action Seeks a judgment embodying a final injunction, to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant (Almeida v. CA, 448 SSCRA 681, January 17, 2005).

Q: What are the distinctions among a preliminary injunction, prohibition and status quo order? A: Injunction Directed against a party in an action

Prohibition Directed against a court, tribunal or person exercising judicial powers

Does not involve the jurisdiction of the court

Issued on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction

May be the main action (final injunction) or provisional remedy

Special Civil Action / Main action

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Status Quo Order Directed against the adverse party and is issued by the court motu propio(Regalado, Remedial Law Compendium, Vol. I, p. 721, 2005 ed.) Cease and Desist Order intended to maintain the last, actual, peaceable and uncontested state of things preceding the controversy without requiring the doing or undoing of an act (Regalado, Remedial Law Compendium, Vol. I, p. 722, 2005 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Distinguish a preliminary injunction from a temporary restraining order.

Q: What are the requisites for the grant of a writ of preliminary injunction?

A: Preliminary Injunction

b. REQUISITES

Temporary Restraining Order Specie of preliminary injunction to maintain status quo before the resolution of the writ of preliminary injunction on the ground of irreparable injury

A: 1. 2.

3.

Note: Injury is irreparable if it is not susceptible to mathematical computation (DFA and BSP v. Falcon and BCA Int’l Corp., G.R. No. 176657, September 1, 2010)

Effective during the pendency of the action unless earlier dissolved Note: The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasijudicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. (Sec. 5, Rule 58 as amended by A.M. No. 07-7-12-SC)

Duration (non-extendible): (Sec. 5, Rule 58) 1. If issued by RTC/MTC – 20days from notice to person restrained 2. If issued by CA – 60 days from notice 3. If issued by SC – until lifted Note: Prohibition against the renewal applies only if the same is sought under and by reason of the same ground for which it was originally issued (Regalado, Remedial Law Compendium, Vol. I, p. 725, 2005 ed.) Note: TRO is deemed automatically lifted after the expiration of the effectivity period

Notice and hearing always required (Sec. 5, Rule 58)

Can be issued to compel the performance of an act

GR: Notice and hearing required XPN: To prevent urgent / irreparable injury, TRO may be issued by an Executive Judge or Presiding Judge for 72hours and a summary hearing be subsequently conducted within such period Cannot be issued to compel the performance of an act

4.

5.

Verified application stating the grounds for its issuance Applicant must establish that he has a right to relief, a right in esse or a right to be protected and the act against which the injunction is directed is violative of such right Bond executed in favor of the person enjoined to answer for all damages Service of summons XPNs: a. Summons could not be served personally or by substituted service b. Adverse party is a resident but is temporarily absent from the Philippines c. Adverse party is a non-resident Notice and hearing (Sec. 5, Rule 58) c. KINDS OF INJUNCTION

Q: What are the classes of injunction? A: Preliminary Injunction (Ancillary Remedy) Order granted at any stage of the action or proceeding prior to the judgment or final order, requiring a party or a court, agency, or a person to refrain from or to perform particular act or acts (Sec. 1, Rule 58) GR: Bond is required XPN: Exempted by court (Sec. 4, Rule 58)

Final Injunction (Injunction as main action) Issued after final judgment of the case permanently restraining the defendant or making the preliminary injunction permanent (Sec. 9, Rule 58) No bond is required

Q: What are the kinds of preliminary injunction? A: Preventive / Prohibitory Injunction Requires a person to refrain from doing an act To preserve status quo

Mandatory Injunction Requires the performance of a particular act To restore status quo

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 d. WHEN MAY WRIT BE ISSUED Q: When may a writ for preliminary injunction be issued?

Q: In what actions will a preliminary injunction not lie? A: 1.

A: 1.

In petitions for relief from judgment entered through FAME; 2. In petitions for certiorari, prohibition, and mandamus; 3. In actions for annulment of judgments obtained through fraud; 4. In actions for annulment of judgment which are not patent nullities ( want of jurisdiction, lack of due process of law) (BancoEspanol v. Palanca, 37 Phil. 921); 5. To restrain continued breach of valid negative obligation; 6. To enjoin repeated trespass on land; 7. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; 8. To restrain voting of disputed shares of stocks; 9. To restrain sheriff from selling property on execution not belonging to judgment debtor; 10. To restrain criminal prosecutions as an exception, in the following cases: a. To afford adequate protection to constitutional rights of accused; b. When there is a prejudicial question which is sub judice; c. Prosecution under an invalid law; d. Double jeopardy is clearly apparent; e. Court wthout jurisdiction over the offense; f. Case of persecution rather than prosection; g. Charges manifestly false and motivated by lust for vengeance; h. There is clearly no prima facie case against accused and motion to quash on said ground is denied; and i. Preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners.

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Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4, RA8975) XPNs: a. Extreme urgency b. Matter involves a constitutional issue c. Grave injustice and irreparable injury will arise d. Supreme Court may issue the writ of preliminary injunction Note: Injunctive writs cannot be issued against any person or entity involved in the execution, implementation and operation of government infrastructure projects (P.D. 1818).

2. 3. 4.

5. 6.

7.

8.

9.

Act/s perpetrated outside the inferior courts’ territorial jurisdiction Against judgments of coordinate courts and quasi judicial bodies of equal rank Issuance will effectively dispose of the main case without trial and/or due process (Boncodin v. Nat’l Power Corporation Employees Consolidated Union, G.R. No. 162716, September 27, 2006) Labor disputes In issuance of licenses, concessions as to disposition, exploitation, utilization, exploration and/or development of natural resources (Sec. 1, PD605) Implementation of Comprehensive Agrarian Reform Program, collection of taxes, criminal prosecutions Mandatory foreclosure of a mortgage by a government financial institution (Sec. 2, P.D. 385) XPN: After hearing, it is established that 20% of outstanding arrearages is paid after the filing of the foreclosure proceedings Act/s sought to be enjoined already consummated XPN: Preliminary mandatory injunction may be availed of such that the dispossessor in forcible entry can be compelled to restore possession to the original possessor and an electric company can be compelled to provisionally reconnect the service it had disconnected. (Regalado, Remedial Law Compendium, Vol. I, p. 718, 2005 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 10. To transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto (Almeida v. CA and Sy, G.R. No. 159124, January 17, 2005) XPN: a. Forcible entry and unlawful detainer cases – preliminary mandatory injunction may be issued (Sec. 15, Rule 70) 11. Generally, injunction will not be granted to take property out of the possession of one party and place it in another whose title not clearly established; 12. When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil.941); 13. To prevent directors from discharging their offices and restoring former directors; 14. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. Note: Only the SC may issue injunction against the government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit, or compel acts pursuant to the implementation and completion of infrastructure projects. (Sec 3, RA 8975)

e. GROUNDS FOR ISSUANCE Q: What are the grounds for the issuance of a preliminary injunction? A: (Sec. 3, Rule 58) 1. Clear legal right of the applicant 2. The commission, continuance or nonperformance of the act or acts complained of will cause injustice to the applicant 3. Person against whom injunction is sought is doing, threatening, attempting, procuring or suffering to do some act or acts in violation of applicant’s rights tending to render the judgment ineffectual. f. GROUNDS FOR OBJECTION, DISOLUTION OF INJUNCTION OR RESTRAINING ORDER

1. 2.

3.

4.

Insufficiency of application for injunction or restraining order Issuance or continuance of injunction or restraining order causes irreparable injury while applicant may be fully compensated for damages by bond Extent of injunction or restraining order is too great Effect: modification Insufficiency or defective bond (Sec. 7, Rule 58).

Note: Filing of verified motion and bond as well as hearing is required

g. DURATION OF TRO Q: What is the duration of a TRO? A: 1.

2.

20 days from notice : if great or irreparable injury would result to the applicant before the matter can be heard on notice. 72 hours from issuance (issued ex parte) : if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.

Note: after conducting a summary hearing within the 72 hours period until the application for Preliminary injunction can be heard, an extension of the 72-hour TRo may be asked. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. While the efficacy of the TRO is ordinarily nonextendible, and the trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance of the status quo. (Federation of Land Reform Farmers of the Philippines v. CA, 246 SCRA 175 (1995)). Note: a TRO issued by the trial court or CA expires automatically upon the lapse of the 20 day period and 60 day period respectively. There is no need for any judicial declaration of dissolution (Paras v. Roura, 163 SCRA 1 (1988))

Q: What happens to the TRO if before the expiration of the 20-day period, the application for preliminary injunction is denied? A: It will be automatically vacated. (Bacolod City Water District v. Labayan, G.R. No. 157494, December 10, 2004)

Q: What are the grounds for objections or dissolution of injunction or restraining order? A: (Sec. 6, Rule 58) ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Is a second application for preliminary injunction allowed? A: A second application for injunction, which rests in the sound discretion of the court, will ordinarily be denied unless it is based on facts unknown at the time of the first application. (Reyes v. Court of Appeals and Sun Life Insurance Office, Ltd., G.R. No. 87647, May 21, 1990). h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE Q: During the Marcos regime, a reclamation contract was signed between the City of Mandaue and MALAYAN. However, that transaction appeared to be unauthorized. After sometime a confirmatory agreement was entered by the parties whereby MALAYAN bound itself to undertake the project at its own expense. After the People power, the plan was resubmitted to the President for approval, the City of Mandaue however started negotiated and contracted with FF Cruz & Co. for the reclamation project. MALAYAN filed a protest with the OP. The Executive Secretaery disapproved the project with MALAYAN, this prompted MALAYAN to file with the RTC a petition for prohibitory and mandatory preliminary injunction. RTC issued a TRO. Upon posting a bond, injunction was issued. Whether or not a writ of preliminary injunction may be issued against the government? A: Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the government (Malayan Integrated Industries vs. CA, GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stevedoring Services, 475 SCRA 426). This includes arrestre and stevedoring services. Note: Section 1 of PD 1818 provides that:No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

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i. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT Q: What is the rule on prior or contemporaneous service of summons in relation to attachment? A: No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by theservice of summons, together with a copy of the complaint, the application forattachment, the applicant’s affidavit and bond, and the order and writ ofattachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply in the following instances: 1. Where the summons could not be served personally or by substituted servicedespite diligent efforts; 2. The defendant is a resident of the Philippines who is temporarily out of the country; 3. The defendant is a non-resident; or 4. The action is one in rem or quasi in rem (Sec. 5). 5. RECEIVERSHIP Q: What is Receivership? A: Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect. Q: Who is a receiver? A: Person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the discretion of the court. Q: Can a party to the action be appointed as a receiver? A: GR: Cannot be appointed

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE XPN: Consented to by all parties Note: A clerk of court cannot be appointed as a receiver (Abrigo v. Kayanan, G.R. No. L-28601, March 28, 1983)

b. REQUISITES Q: What are the requisites in the application for receivership? A:

Q: Which court may appoint a receiver?

1.

A: (Sec. 1, Rule 59) 1. Court where action is pending 2. Court of Appeals or Supreme Court or a member thereof

2.

Note: During pendency of appeal, appellate court may allow receiver to be appointed by court of origin

Q: What is the effect of a contract executed by a receiver without court approval?

3. 4. 5.

Party applying for receivership has an existing interest in the property in litigation Verified application filed at any stage of the proceedings even after final judgment, prior to the satisfaction of judgment (Sec. 1, Rule 59) Posting of bond (Sec. 2, Rule 59) Grounds stated in Sec. 1, Rule 59 Receiver must be sworn to perform his duties faithfully

c. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER

A: Such contract will constitute his personal undertakings and obligations (Pacific Merchandising Corp. v. Consolacion Insurance & Surety Co., G.R. No. L-30204, October 29, 1976)

Q: What is the requirement before an order of appointment may be issued?

Note: Receivership cannot be effected on a property in custodialegis (LizarragaHnos. V. Abada, 40phil124). But a receiver can be appointed where a property in custody of an administrator or executor is in danger of imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)

A: The applicant must file a bond executed in favor of the party against whom the application is presented, in an amount fixed by court, to pay damages in case receivership is procured without sufficient cause. (Sec. 2, Rule 59)

a. CASES WHEN A RECEIVER MAY BE APPOINTED

Note: The court may require an additional bond for further security. (Sec. 2, Rule 59)

Q: In what cases may a receiver be appointed? A: (Sec. 1, Rule 59) 1. Applicant has an interest in the property or fund subject of the action is in danger of being lost, removed, or materially injured 2. Mortgaged property is in danger of being dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or 3. Stipulation in the contract of mortgage 4. To preserve the property after judgment during the pendency of the appeal or to dispose it according to judgment 5. To aid execution when execution has been returned unsatisfied 6. Judgment debtor refuses to apply his property in satisfaction of the judgment or to carry on the judgment 7. Appointment of receiver is most convenient and feasible means of preserving, administering or disposing of the property in litigation

d. POWERS OF A RECEIVER Q: What are the powers of a receiver? A: (Sec. 6, Rule 59) 1. Power to bring and defend actions in his own name Note: No action may be filed by or against a receiver without leave of court which appointed him

2. 3. 4.

5. 6. 7. 8.

9.

Take and keep possession of the property in controversy Receive rents Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of which he is a receiver Compound for and compromise debts collected Make Transfers Pay outstanding debts Divide money and other property that shall remain among the persons legally entitled to receive the same Invest funds in his hands only by order of the court upon written consent of all the parties to action;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 10. Other acts which the court may authorize Note: Funds in the hands of a receiver may be invested only by court order and written consent of all parties to an action.

e. TWO KINDS OF BONDS Q: What is the 2-bond requirement in receivership? A: 1. 2.

Bond posted by the applicant (Sec. 2, Rule 59) Bond posted by receiver appointed (Sec. 4, Rule 59) f. TERMIINATION OF RECEIVERSHIP

Q: What are the grounds for the discharge of receiver? A: 1.

Posting of counterbond by adverse party (Sec. 3, Rule 59) Note: Where counterbond is insufficient or defective, receiver may be re-appointed (Sec. 5, Rule 59)

2.

3. 4. 5.

Appointment of receiver was made without sufficient cause (Sec. 3, Rule 59) Insufficient or defective applicant’s bond (Sec. 5, Rule 59) Insufficient or defective receiver’s bond (Sec. 5, Rule 59) Receiver no longer necessary (Sec. 8, Rule 59)

Q: How is receivership terminated? A: (Sec. 8, Rule 59) 1. By court motupropio or on motion by either party 2. Based on the following grounds: a. Necessity for receiver no longer exists b. Receiver asserts ownership over the property (Martinez v. Graño, G.R. No. L-25437, August 14, 1926) 3. After due notice and hearing to all interested party 6. REPLEVIN Q: What is replevin? A: Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession

128

in specie, the recovery of damages being only incidental (Am. Jur. 6). Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession. Note: A writ of replevin may be served anywhere in the Philippines (Regalado, Remedial Law Compendium, Vol. I, p. 749, 2005 ed.)

Q: Distinguish attachment.

replevin

from

preliminary

A: Replevin Recovery of possession of personal property is the principal relief and damages are incidental This is available before defendant files an answer

Available only where defendant is in actual or constructive possession of personal property involved Extends only to personal property capable of manual delivery Used to recover personal property even if not being concealed, removed or disposed Cannot be availed of when property is in custodialegis(under attachment) or seized under search warrant Property of GOCCs cannot be reached

Sheriff takes possession of the property subject of the replevin and hold the same for a period of 5 days after which said property will be delivered to the party who obtained the writ. Bond to be posted is double the value of the property sought to be recovered

Preliminary Attachment Available even if recovery of personal property is only an incidental relief Available from commencement but before entry of judgment May be resorted to even if personal property is in the custody of a third person Extends to all kinds of property whether real, personal or incorporeal Recover property being concealed, removed or disposed Can be resorted to even if property is in custodialegis

Properties of GOCCs may be reached if utilized in its proprietary function. Sheriff does not take possession of the property attached except contructively placing it under custodia legis.

Bond amount is fixed by court and does not exceed the claim or value of the property to be attached

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Note: These remedies cannot be availed of in the same case.

1.

Q: To be able to secure financial accommodations from Makati Leasing, Wearever discounted and assigned several receivables under a Receivable Purchase Agreement. To secure the collection of the receivables assigned, private respondent executed a chattel mortgage over certain machineries which were bolted to the ground. Upon default Makati Leasing move for extrajudicial foreclosure of the mortgage properties and filed an action for replevin which was granted by the court. Can the machineries bolted to the ground be a subject of replevin?

2.

3.

4.

Applicant is the owner of the property claimed, particular description of such, entitlement to possession Property is wrongfully detained, alleging cause of detention according to applicant’s knowledge, information and belief Property has not been taken for tax assessment or fine, or seized by writ of execution, preliminary attachment, in custodialegis, if so seized, that it is exempt or should be released from custody Actual market value of the property

c. AFFIDAVIT AND BOND; REDELIVERY BOND A: Machineries bolted to the ground are real properties that may not be the subject to replevin (Makati Leasing and Finance Corporation v. Wearever Textile Mills Inc. GR No L- 58469, May 16, 1983). a. WHEN MAY WRIT BE ISSUED Q: When may a writ of replevin be issued? A: This may only be obtained when the defendant in the action has not yet filed his answer to the complaint where it is necessary to: 1. Protect plaintiff’s right of possession to property 2. Prevent defendant from destroying, damaging or disposing of the property Q: Can a writ of replevin be issued anywhere in the Philippines? A: Under the Resolution of the Supreme Court enbanc dated January 11, 1983, providing for the interim rules and guidelines relative to the implementation of BP 129, a writ of replevin like the one issued in the present case may be served anywhere in the Philippines (Fernandez v. International Corporate Bank now Union Bank of the Philippines, GR No 131283, October 7, 1999). b. REQUISITES

Q: What are the contents of the affidavit? A: Affidavit, alleging: 1. That the applicant is the owner of property claimed, describing it or entitled to its possession; 2. That the property is wrongfully detained by the adverse party, alleging cause of its detention; 3. That the property has not been distrained or taken for tax assessment or fine or under writ of execution/attachment or placed under custodialegis or if seized, that it is exempt or should be released; and 4. The actual market value of the property. Q: What is redelivery bond? A: Bond, which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant (Sec. 2). Q: When is it required? A: It is required that the redelivery bond be filed within the period of 5 days after the taking of the property. The rule is mandatory (Yang vs. Valdez, 177 SCRA 141).

Q: What are the requisites in applying for replevin?

d. SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY

A:

Q: What are the duties of the sheriff?

1. 2.

Filing of Affidavit by any party before an answer is filed Posting of bond double the value of the property

Q: What are the contents of the affidavit? A: (Sec. 2, Rule 60)

A: 1.

2.

Serve a copy of the court order, application, affidavit and bond upon the adverse party Take the property and retain it in his custody

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 3. 4.

5.

If property is concealed, make a public demand for the delivery of the property If property is not delivered, sheriff must cause the building or enclosure to be broken and take property and keep such in his custody Deliver the property to the party entitled to such upon receiving his fees.

Q: When may a property subject of replevin be returned? A: 1. 2. 3.

Filing of a redelivery bond double the value of the property Plaintiff’s bond is insufficient or defective and is not replaced with a proper bond Property is not delivered to the plaintiff for any reason

rules that are applicable only to specific special civil actions (sec. 3) The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special.

2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Q: Distinguish ordinary civil action from special civil action. A: Ordinary Civil Action Must be based on a cause of action – act or omission in violation of the rights of another

Q: What are the remedies of a third person whose property is taken by virtue of a replevin? A: 1.

2.

3.

Third party shall file and serve affidavit upon sheriff and applicant stating his entitlement to possession 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 Claim for damages upon said bond must be filed within 120days from date of filing of the bond

Q: Is the Rule on Prior or Contemporaneous Service of Summons observed in Replevin? A: Yes. Although the writ of replevin may be issued ex-parte, it cannot be implemented or enforced if not preceded or accompanied by a service of summons. S. SPECIAL CIVIL ACTIONS 1. NATURE OF SPECIAL CIVIL ACTIONS Q: What are Special Civil Actions? A: Since a civil action in general 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, Rules of Court), a special civil action is generally brought or filed for the same purpose. Note: although both types of actions are governed by the rules for ordinary civil actions, there are certain

130

Venue is determined either by the residences of the parties where the action is personal or by the location of the property where the action is real May be filed in Municipal Trial Court or the Regional Trial Court depending upon the jurisdictional amount or nature of the action May be commenced only by the filing of complaint

Special Civil Action Cause of action not necessarily needed Examples: 1. Declaratory relief – action is brought before there is any breach 2. Interpleader – plaintiff files a complaint even if he has not sustained actual transgression of his rights Not necessarily true as in quo warranto, the venue is where the Supreme Court or Court of Appeals if the petition is commenced in any of these courts without taking into consideration the residences of the parties Some actions may be filed only in the Municipal Trial Court, some cannot be commenced therein

May be commenced by the filing of a complaint or petition

Q: What are the special civil actions under the Rules of Court? A: 1. 2. 3.

4. 5. 6. 7.

Interpleader (Rule 62) Declaratory relief and similar remedies (Rule 63) Review of judgments and final orders of the COMELEC and the Commission on Audit (Rule 64) Certiorari, prohibition and mandamus (Rule 65) Quo warranto(Rule 66) Expropriation (Rule 67) Foreclosure of real estate mortgage(Rule 68)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 8. 9.

Partition (Rule 69) Forcible entry and unlawful detainer (Rule 70) 10. Contempt (Rule 71) Q: What are the three special civil actions which are within the jurisdiction of inferior courts? A: 1.

2. 3.

Interpleader, provided that the amount is within the jurisdiction of such inferior court Ejectment suits Contempt

Q: What special civil actions are initiated by complaints and initiated by petitions? A: 1.

2.

by complaint a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer by petition a. declaratory relief b. review of judgments and final orders or resolutions of the COMELEC / COA c. Certiorari d. Prohibition e. Mandamus f. Quo Warranto g. Contempt 3. JURISDICTION AND VENUE

Q: Who has jurisdiction over special civil actions and where should it be filed? A: Jurisdiction

Venue Interpleader MTC – where the value of Where the plaintiff or the claim or the personal any of the principal property does not exceed plaintiff resides or where P300,000 or P400,000 in Metro Manila or where the the defendant or any of value of the real property the principal defendants resides does not exceed P20,000 or P50,000 in Metro Manila. RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC

Note: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Declaratory Relief RTC Note: It would be error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief (Tano v. Socrates, G.R. No. 110249, Aug. 14, 1997)

Where the petitioner or the respondent resides

Expropriation Land: where the RTC (incapable of property is located pecuniary estimation) (Barangay San Roque v. Personal property: the Heirs of Pastor, G.R. No. place where the plaintiff 138896, June 20, 2000) or defendant resides Certiorari, Prohibition, Mandamus RTC: if it is directed against a municipal trial court, a corporation, a board, an officer or a person. CA or with the SB, whether or not the same is in aid of the court’s appellate jurisdiction. RTC, CA, SC, Sandiganbayan COMELEC in aid of its appellate jurisdiction (A.M. No. 077-12-SC)

If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or the Rules, the petition shall be filed with and be cognizable only by the Court of Appeals.

In election cases involving an act or omission of MTC /RTC, it shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction (Sec. 4, Rule 65) Quo Warranto With the SC, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents RTC, CA, SC, SB in aid of its resides. When the appellate jurisdiction Solicitor General commences the action, it may be brought in a RTC in the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Contempt Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. 5, Rule 70) Forcible Entry Metropolitan Trial Courts; Where the property is covered by Rule on located Summary Procedure Unlawful Detainer Metropolitan Trial Courts; Where the property is covered by Rule on located Summary Procedure. Partition 1. Real property – where the property RTC is located (incapable of pecuniary 2. Personal property estimation) – the place where the plaintiff or defendant resides (Sec. 13, Rule 69) Foreclure of REM RTC (incapable of pecuniary estimation) Where the land or any (Barangay San Roque v. part thereof is located Heirs of Pastor, G.R. No. 138896, June 20, 2000)

Q: Distinguish intervention.

between

INTERPLEADER Special civil action, independent and original

Commenced by the filing of a complaint.

Filed by a person who has no interest in the subject matter of the action or if he has an interest, the same is not disputed by the claimants.

The defendants are brought into the action only because they are impleaded as such in the complaint.

INTERVENTION Not an original action but mere ancillary and depends upon the existence of a precious pending action. Commenced by a motion to intervention filed in a pending case attaching thereto the pleading- inintervention. Filed by a person who has a legal interest in any of the following: a. The subject matter of the litigation; b. The success of either of the parties; or c. The success of both of the parties; or d. He may be adversely affected by the disposition or distribution of property in the judgment. If a complaintinintervention is filed, the defendants are already parties to an existing suit not because of the intervention but because of the original suit.

a. REQUISITES FOR INTERPLEADER Q: What are the requisites in order that the remedy of interpleader may be availed of? A: 1. 2. 3.

4. INTERPLEADER 4. Q: What is an interpleader? 5.

132

and

A:

MTC, RTC, CA, SC

A: It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims among themselves. (Sec. 1, Rule 62).

interpleader

6.

Plaintiff claims no interest in the subject matter or his claim is not disputed Two or more claimants asserting conflicting claims The subject matter must be one and the same Person in possession or obliged files a complaint. The parties to be interpleaded must make effective claims. Payment of docket and other lawful fees.

Note: Upon filing of complaint, the court shall issue an order requiring conflicting claimants to interplead. (Sec. 2, Rule 62)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE b. WHEN TO FILE

2. 3. 4.

Q: When must an action for interpleader be filed? A: Within a reasonable time after a dispute has arisen without waiting to be sued by claimants and before such is barred from laches. (Feria, Civil Procedure Annotated, Vol. II, p. 425, 2001 ed.) Q: Which court interpleader?

has

jurisdiction

over

an

A: Inferior courts have jurisdiction so long as the amount involved is within their jurisdiction

Cross-claim Third-party complaints Responsive pleadings

Q: May an interpleader be availed of the resolve breach of undertaking? A: No. Such issue should be resolved in an ordinary civil action for specific performance or other relief (Beltran v. PHHC, G.R. No. L-25138, August 28, 1969) 5. DECLARATORY RELIEF AND SIMILAR REMEDIES Q: What is a declaratory relief?

Q: Should there be service of summons in interpleader?

Note: Claimants shall have 15days to file an answer and such answer must be served upon the plaintiff and co-defendants. (Sec. 5, Rule 62).

A: A special civil action brought by a 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 any other governmental regulation, before breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder.

Q: What is the effect of failure of a claimant to file an Answer?

Q: What is the purpose of an action for declaratory relief?

A: Upon motion, the court may declare such claimant in default and render a judgment barring him from any claim in respect to the subject matter. (Sec. 5, Rule 62)

A:

A: Summons and copies of the complaint and order shall be served upon conflicting claimants. (Sec. 3, Rule 62)

1.

Q: May a motion to dismiss be filed? 2. A: Yes. It may be filed by any of the claimant within the time for filing an answer. (Sec. 4, Rule 62) Q: What are the grounds for filing a motion to dismiss?

To determine any question of construction or validity or constitutionality of an instrument, ordinance or regulation Declaration of rights and duties thereunder

Q: Distinguish declaratory judgment from ordinary judgment. A:

A: (Sec. 4, Rule 62) 1. Impropriety of the interpleader action 2. Grounds specified under Rule 16 of the Rules of Court Q: What is the effect of filing a motion to dismiss? A: Period to file an answer is tolled and if the motion is denied, the answer may be filed within the remaining period which shall not be less than 5days from notice of denial. (Sec. 4, Rule 62) Q: What are the other allowed pleadings in an interpleader? A: (Sec. 5, Rule 62) 1. Counterclaim

DECLARATORY JUDGMENT Declaratory judgment stands by itself and no executory process follows Intended to determine any question of construction or validity prior to breach or violation

ORDINARY JUDGMENT Ordinary judgment involves executor or coercive relief Intended to remedy or compensate injuries already suffered

a. WHO MAY FILE THE ACTION Q: Who may file an action for declaratory relief? A: Any person:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Interested under a deed, will, contract or other written instrument Whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation

b. REQUISITES OF ACTION FOR DECLARATORY RELIEF Q: What are the requisites of an action for declaratory relief? A: 1. 2.

Filing of Petition before there is a breach or violation Subject matter is a deed, will, contract, written instrument, statute, executive order, regulation or ordinance

A: Court may motupropio or upon motion refuse based on the following grounds: 1. A decision will not terminate the uncertainty or controversy which gave rise to the action 2. Declaration or construction is not necessary and proper under the circumstances Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or remove clouds or to consolidated ownership in a pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)

Q: Can the court exercise discretion in application for declaratory relief? A: 1.

Note: The enumeration of the subject matter is exclusive, hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. (Riano, Civil Procedure: A Restatement for the Bar, p. 613, 2009 ed.)

3. 4.

5.

6.

There is justiciable controversy Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005), i.e. litigation is imminent and inevitable (Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951) Adequate relief is not available through other means or other forms of action or proceedings (Ollada v. Central Bank, G.R. No. L-11357, May 31, 1962) The controversy is between persons whose interests are adverse;

Q: To whom shall notices be given? A: 1.

2.

Solicitor general if subject matter involves: a. Validity of statute, executive order, regulation or governmental regulation b. Constitutionality of local government ordinance Prosecutor or attorney of the local government unit if subject matter involves validity of local government unit

c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION Q: When may a court refuse to make a judicial declaration?

134

2.

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. On the other hand, the court does not have the discretion to refuse to act with respect to actions described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to consolidate ownership, the court cannot refuse to render a judgment (Sec. 5, Rule 63).

d. CONVERSION TO ORDINARY ACTION Q: When may an action for declaratory relief be converted into an ordinary action? A: After filing of petition for declaratory relief but before the final termination of the case or rendition of judgment, a breach or violation of an instrument, statute, executive order, regulation or ordinance takes place. (Sec. 6, Rule 63) Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory Relief. A: 1. Ordinary civil action – plaintiff alleges that his right has been violated by the defendant; judgment rendered is coercive in character; a writ of execution may be executed against the defeated party.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 2. Special civil action of declaratory relief – an impending violation is sufficient to file a declaratory relief; no execution may be issued; the court merely makes a declaration. Q: Is a third-party complaint proper in an action for declaratory relief? A: No. Because in a third-party complaint, such person seeks to obtain contribution, indemnity, subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the terms of a contract. (Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977). Q: What are the instances wherein a declaratory relief is unavailable? A: 1.

To obtain judicial declaration of citizenship; 2. To establish illegitimate filiation and determine hereditary rights; 3. The subject of the action is a court decision; 4. Actions to resolve political questions; 5. Those determinative of the issues rather than a construction of definite status, rights and relations; 6. Terms of assailed ordinances are not ambiguous or of doubtful meaning; 7. In a petition to seek relief from a moot and academic question; 8. Where the contract or statute on which action is based has been breached; 9. When the petition is based on the happening of a contingent event; 10. When the petitioner is not the real party in interest; and 11. Where the administrative remedies have not yet been exhausted. e. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Q: What are the similar reliefs referred to under Rule 63? A: 1. 2. 3.

Reformation of an instrument Quiet title to real property or to remove clouds Consolidation of ownership (Art. 1607, Civil Code)

(1) REFORMATION OF AN INSTRUMENT Q: What is meant by reformation of instrument?

A: 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 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). Q: When may an instrument be reformed? A: The instrument may be reformed if it does not express the true intention of the parties because of lack of skill of the person drafting the instrument (Art. 1363, CC). If the parties agree upon the mortgage or pledge of property, but the instrument states that the property is sold absolutely or with a right of repurchase, reformation of the instrument is proper (Art. 1365, CC). Q: What is the remedy if the consent of a party to a contract has been procured by fraud, inequitable conduct, or accident? A: 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). Note: Reformation of the instrument cannot be brought to reform any of the following: 1. Simple donation inter vivos wherein no condition is imposed; 2. Wills; or 3. When the agreement is void (Art. 1666, CC).

(2) CONSOLIDATION OF OWNERSHIP Q: What is the purpose of an action brought to consolidate ownership? A: 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,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

135

UST GOLDEN NOTES 2011 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). Note: 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). Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. For instance, a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. 1620). The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10) years from the date of the contract. In the absence of any agreement, the redemption period shall be four (4) years from the date of the contract (Art. 1606). 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.

(3) QUIETING OF TITLE TO REAL PROPERTY Q: What is an action for quieting title to real property?

136

A: The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, Civil Code). 6. REVIEW OF JUDGMENT AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA Q: What is the constitutional basis for the application of Rule 65 under Rule 64? A: 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). To implement the above constitutional provision, the SC promulgated Rule 64. Q: What is the mode of review for judgments and final orders of the COMELEC and COA? A: The petition may be brought by the aggrieved party to the Supreme Court on Certiorari under Rule 65, except otherwise provided. Note: Rule 65 applies to the mode of review under Rule 64.Said mode of review is based on Article IX-A of the 1987 Constitution providing that the proper mode of review is certiorari under Rule 65 to be filed before the Supreme Court.Under R.A. 7902 the Court of Appeals has jurisdiction over all adjudications of the Civil Service Commission.

A: 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).

Note: The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action.

Q: Is it required that the plaintiff be in the possession of the property before an action is brought?

Note: While Rule 64 makes reference to the certiorari under Rule 65, the period for the filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter than that provided under Rule 65

Q: What is the period for filing certiorari as referred to in Rule 64? A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days from notice of the judgment, final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. 3, Rule 64).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: When may the court issue an order to comment? A: If the SC finds the petition sufficient, respondents will be ordered to file a verified comment within 10days from notice of such order. (Sec. 6, Rule 64) Q: What are basic requirements for the petition? A: The following basic requirements must be complied with: 1. The petition shall be verified and filed in 18 copies; 2. Accompanied by clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of documents relevant and pertinent to the petition; 3. The aggrieved party is named as the petitioner and shall join as respondent the commission concerned and all the persons interested in sustaining the judgment, final order or resolution. 4. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review; 5. Petition shall state the specific material dates showing that it was filed within the period fixed by the Rules. 6. The petition shall be accompanied by proof of service of a copy thereof on the commission involved and on the adverse party, and of the timely payment of docket and other lawful fees (Sec. 5, Rule 64) 7. Certification against non forum shopping 8. Petition shall pray for a judgment annulling or modifying the questioned judgment, final order or resolution. Note: The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition (Sec. 5, Rule 64).

a. APPLICATION OF RULE 65 UNDER RULE 64

aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days.

b. 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 Q: Distinguish the mode of review of judgment, final orders or resolutions of COMELEC and COA from other tribunals, persons and officers. A: Rule 64 for COMELEC and COA Petition is based on questions of law It is a mode of appeal but the petition used is Rule 65 Involves review of judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just The COMELEC and COA shall be public respondents who are impleaded in the action

Q: Distinguish Rule 64 from Rule 65. A: Rule 64 Directed only to the judgments, final orders or resolutions of the COMELEC and COA; Must be filed within 30 days from notice of judgment or resolution If MR is denied, the

Rule 65 Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions; Must be filed within 60 days from notice of judgment or resolution If MR is denied, the

aggrieved party will have another 60 days within which to file the petition counted from the notice of denial.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed The court is in the exercise of its appellate jurisdiction and power of review

Review of judgment, final orders or resolutions of other tribunals, persons and officer Petition is based on questions of law It is a mode of appeal Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from

Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded

Motion for reconsideration is not required

The court is in the exercise of its appellate jurisdiction and power of review

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Petition for certiorari is to be filed before the SC

Petition for certiorari is to be filed only with the Court of Appeals

Q: What are the requisites for a review under Rule 64?

b. 4. 5. 6.

Certified true copy of material records of the case Statement of material dates Sworn certification against forum shopping Proof of service

A: 1.

Filing of verified petition within 30days from notice of the judgment, final orders or resolutions (Sec. 3, Rule 64)

Q: What are the grounds for the outright dismissal of the petition?

Note: Interlocutory orders must be assailed under Rule 65, not Rule 64

A: (Sec. 6, Rule 64) 1. Petition is not sufficient in form and substance (Sec. 5, Rule 64) 2. Petition was filed for purpose of delay 3. Issue is unsubstantial

2.

Payment of docket and other lawful fees (Sec. 4, Rule 64)

Note: The filing of the petition for certiorari does not stay the execution of the assailed judgment, final order or resolution of the Commission unless SC directs otherwise by the issuance of a temporary restraining order or preliminary injunction. (Sec. 8, Rule 64)

Q: What are the contents of the petition? A: (Sec. 5, Rule 64) 1. Verified petition filed in 18copies joining as respondents the Commission concerned and person/s interested in sustaining the judgment, final order or resolution a quo 2. Statement of facts, issues, grounds for review, arguments and relief prayed for 3. Attachment of: a. Duplicate original or certified true copy of assailed judgment, final order or resolution

Q: Are findings of fact reviewable under Rule 64 using Rule 65? A: The petition under Rule 64 using Rule 65, cannot question the findings of fact of the commission involved where such findings are supported by substantial evidence. Such findings when so supported by the requisite quantum of evidence are final and non- reviewable (Sec 5, Rule 64). Q: What is the effect of filing of a motion for new trial or reconsideration if allowed under the procedural rules of the commission concerned? A: It will interrupt the period for filing the petition and if motion is denied, the petition may be filed within the remaining period which shall not be less than 5days. (Sec. 3, Rule 64)

7. CERTIORARI, PROHIBITION AND MANDAMUS GENERAL MATTERS a. DEFINITIONS AND DICTINCTIONS CERTIORARI PROHIBITION MANDAMUS Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ annulling or modifying the commanding a tribunal, commanding a tribunal, corporation, board proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done: officer exercising judicial or quasi- whether exercising judicial, quasi- (a) When he unlawfully neglects the judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3, remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65). (Sec. 1, Rule 65). 65). Directed against a person exercising to Directed against a person exercising Directed against a person exercising judicial or quasi-judicial functions judicial or quasi-judicial functions, ministerial duties or ministerial functions

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE To correct an act performed by respondent Purpose is to annul or modify the proceedings Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion

To prevent the commission of an To compel performance of an act act Purpose is to stop the proceedings Purpose is to compel performance of the act required and to collect damages Person or entity must have acted Person must have neglected a ministerial without or in excess of jurisdiction, duty or excluded another from a right or or with grave abuse of discretion office

Extends to discretionary acts

Extends to discretionary and ministerial acts

Only against a respondent exercising judicial or quasi-judicial functions

Only for ministerial acts

Against respondents who exercise judicial and/or non-judicial functions

Q: When does the court acquire jurisdiction over the person of the respondent in original actions for certiorari, prohibition and mandamus? A:

2. 1.

2.

If the action is filed with the RTC – Follow the rules on ordinary civil actions. Jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court. If the action is filed with the CA or the SC – The court acquires jurisdiction over the respondents with the service on them of its orders indicating its initial action on the petition or by voluntary submission to such jurisdiction.

3.

4.

CERTIORARI Q: What is certiorari? A: A writ issued by a superior court to an inferior court, board or officer exercising judicial or quasijudicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. Note: An original action for certiorari, prohibition, and mandamus is an independent action. As such, it does not interrupt the course of the principal. Note: A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal (Microsoft Corp. vs. Best Deal Computer Center Corp., GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235, Aug. 16, 2006).

Q: Define the following. A: 1.

Judicial function – is where the tribunal or person has the power to determine what

5.

the law is, what the rights of the parties are, and undertakes to determine these questions and adjudicate upon the rights of the parties. Without jurisdiction – is where the respondent does not have the legal power to determine the case. Excess of jurisdiction – is where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. Grave abuse of discretion – is where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. Plain, speedy and adequate remedy – is one which promptly relieves the petitioner from the injurious effects of the judgment and the acts of the lower court or agency.

Q: Which court has jurisdiction over petitions for certiorari? A: The courts have concurrent jurisdiction, however, petitions are subject to the rule on hierarchy of courts.

Q: Does the filing of a petition for certiorari interrupt the running of the reglamentary period? A: No. The rule is the same for prohibition and mandamus since the remedies under Rule 65 are independent actions.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Distinguish certiorari under Rule 65 and certiorari under Rule 45.

Rule 45 GR: Findings of fact of CA are conclusive

principal case. It is necessary therefore, to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against the public respondent so the latter may, during the pendency of the petition, be enjoined from further proceeding with the case (sec 7, Rule 65).

Involves question of law

Q: Are the remedies of appeal and certiorari exclusive?

A: Rule 65 Findings of fact of Court of Appeals are not conclusive or binding upon SC Involves question of jurisdiction Mode of appeal Directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy Filed not later than 60 days from notice of judgment, order or resolution appealed from Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasijudicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 0203-SC) Court exercises original jurisdiction

Filed with the RTC, CA, Sandiganbayan or COMELEC

Mode of review Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasijudicial agency is not impleaded Motion reconsideration required

is

for not

GR: Where the proper remedy is appeal, the action for certiorari will not be entertained. Certiorari is not a remedy for errors of judgment. Errors of judgment are correctible by appeal; errors of jurisdiction are reviewable by certiorari. XPN: A petition for certiorari may be allowed despite the availability of the remedy of appeal when: 1. Appeal does not constitute a speedy and adequate remedy; 2. Orders were issued either in excess of or without jurisdiction; 3. For certain special considerations as for public policy or public welfare; 4. Order is a patent nullity; 5. Decision in the certiorari case will avoid future litigation; or 6. In criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (Regalado, Remedial Law Compendium, Vol. I, p. 783, 2007 ed.). Note: When the remedy by appeal had already been lost due to petitioner’s own neglect or error in the choice of remedies, certiorari cannot lie. The two remedies are mutually exclusive (Meralco v. CA, G.R. No. 88396, July 4, 1990).

PROHIBITION The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC

Q: Will the filing of a petition for certiorari interrupt the course of the principal case? Or is an injunctive relief necessary? A: The filing of a petition for certiorari against the lower court or tribunal or any other public respondent does not interrupt the course of the

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A:

Q: What is prohibition? A: A remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power which they have not been vested by law. Note: It is commenced by a verified petition accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping (Sec. 2, Rule 65).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Distinction between Prohibition and injunction To perform a positive legal duty and not to undo what has been done

A: INJUNCTION Directed only to the party litigants, without in any manner interfering with the court.

PROHIBITION Directed to court commanding it to from the exercise jurisdiction to which no legal claim.

itself, cease of a it has

Q: What is the function of writ of prohibition? A: It is a preventive remedy. Its function is to restrain the doing of some act about to be done. It is not intended to provide a remedy for acts already accomplished. If the thing be already done, the writ of prohibition cannot undo it (Agustin v. De la Fuente, G.R. No. L-2345, Aug. 31, 1949). MANDAMUS Q: What is mandamus? A: A writ issued in the name of the State, to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station. Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping (Sec. 3, Rule 65).

Q: Distinguish mandamus from quo warranto. A: Mandamus Available when one is unlawfully excluded from the use or enjoyment of an office against a person who is responsible for excluding the petitioner

Quo Warranto Available against the holder of an office, who is the person claiming the office as against petitioner, not necessarily the one who excludes the petitioner

Q: Distinguish mandamus from injunction. A: Mandamus Special civil action Directed against a tribunal, corporation board, or officer Purpose is for tribunal, corporation, board or officer to perform ministerial and legal duty

injunction Ordinary civil action Directed against a litigant

For the defendant either to refrain from an act or to perform not necessarily a legal and

ministerial duty To prevent an act to maintain the status quo between the parties

b. REQUISITES CERTIORARI That the petition is directed against a tribunal, board or officer exercising judicial or quasijudicial functions;

PROHIBITION MANDAMUS The petition is The plaintiff has a directed against a clear legal right to tribunal, the act corporation, demanded; board or person exercising judicial, quasijudicial, or ministerial functions; The tribunal, The tribunal, It must be the board or officer corporation, duty of the has acted board or person defendant to without, or in must have acted perform the act, excess of without or in which is jurisdiction or excess of ministerial and with abuse of jurisdiction or not discretionary, discretion with grave abuse because the same amounting to of discretion is mandated by lack or excess or amounting to lack law; jurisdiction of jurisdiction; There is no There is no The defendant appeal or any appeal or any unlawfully plain, speedy and plain, speedy and neglects the adequate adequate remedy performance of remedy in the in the ordinary the duty enjoined ordinary course course of law. by law; of law. Accompanied by Accompanied by There is no appeal a certified true a certified true or any plain, copy of the copy of the speedy and judgment or judgment or adequate remedy order subject of order subject of in the ordinary the petition, the petition, course of law. copies of all copies of all pleadings and pleadings and documents documents relevant and relevant and pertinent pertinent thereto, thereto, and and sworn sworn certification of certification of non-forum non-forum shopping under shopping under Rule 46. Rule 46.

Q: What are the requisites of a valid certiorari? A: 1. 2.

There must be a controversy; Respondent is exercising judicial or quasijudicial functions;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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4.

Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; and There must be no appeal or other plain, speedy and adequate remedy. (Sec. 1, Rule 65)

1. 2. 3. 4.

Summary procedure Writ of Amparo Writ of Habeas Data Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p. 629, 2009 ed.)

Note: Certiorari is not the remedy for a loss appeal.

Q: When is prohibition issued?

Q: What are the requisites of a valid prohibition?

A:

A: Sec. 2, Rule 65 1. There must be a controversy 2. Respondent is exercising judicial, quasijudicial functions or ministerial functions 3. Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction 4. There must be no appeal or other plain, speedy and adequate remedy Q: What are the requisites of a valid mandamus? A: Sec. 3, Rule 65 1. There must be a clear legal right or duty 2. The act to be performed must be within the powers of the respondent to perform; 3. The respondent must be exercising a ministerial duty 4. The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondent) 5. There is no appeal or other plain, speedy and adequate remedy in the ordinary course of law c. WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS PROPER Q: What are the grounds for the filing of a petition for certiorari? A: That a tribunal, board or officer exercising judicial or quasi-judicial functions acted: 1. Without or in excess of jurisdiction 2. In grave abuse of discretion amounting to lack or excess of jurisdiction Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping. (Sec. 1, Rule 65).

Q: When is certiorari under Rule 65 unavailable?

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A:

GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli. XPN: It will lie to prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality. (Tan v. COMELEC, G.R. No. 73155, July 11, 1986) Note: Prohibition and not mandamus, is the remedy where a motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30, 1949)

Q: What are the grounds for mandamus? A: 1.

2.

When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or When any tribunal, corporation, board, officer or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3)

Q: Will mandamus issue despite the availability of administrative remedies? A: GR: Mandamus will not issue when administrative remedies are still available.

XPN: 1. If the party is in estoppel (Vda. de Tan v. Veterans Backpay Commission, G.R. No. L12944, Mar. 30, 1959); or 2. Only questions of law are raised. (Madrigal v. Lecaroz, G.R. No. L-46218, Oct. 23, 1990) Q: May mandamus be used to compel a discretionary duty?

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: Mandamus is only applicable to a ministerial duty. However, mandamus can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner. Q: May the CA award damages in mandamus proceedings? A: Yes. The CA in resolving a petition for mandamus is authorized to award civil damages in the same petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3 1992) d. INJUNCTIVE RELIEF Q: When is injunctive relief proper? A: The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case (Sec. 7, Rule 65). The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge (AM 07-7-12-SC, Dec. 12, 2007). e. CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI; PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO FILE PETITION Q: Distinguish certiorari from appeal by certiorari. Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the appellate process over the original case; Seeks to review final judgments or final orders;

Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal, and not a part of the appellate process but an independent action. May be directed against an interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law

Raises only questions of law;

Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; Filed within 15 days from Filed not later than 60 days notice of judgment or final from notice of judgment, order appealed from, or of order or resolution sought the denial of petitioner’s to be assailed and in case a motion for reconsideration motion for reconsideration or new trial; or new trial is timely filed, whether such motion is required or not, the 60 day period is counted from notice of denial of said motion; Extension of 30 days may Extension no longer be granted for justifiable allowed; reasons Does not require a prior Motion for motion for Reconsideration is a reconsideration; condition precedent, subject to exceptions Stays the judgment Does not stay the appealed from; judgment or order subject of the petition unless enjoined or restrained; Parties are the original The tribunal, board, officer parties with the appealing exercising judicial or quasiparty as the petitioner and judicial functions is the adverse party as the impleaded as respondent respondent without impleading the lower court or its judge; Filed with only the May be filed with the Supreme Court Supreme Court, Court of Appeals, Sandiganbayan, or Regional Trial Court SC may deny the decision motupropio on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The antithetic character of appeal and certiorari has been generally recognized and observed save only on those rare instances when appeal is satisfactorily shown to be an inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 appeal (Banco Filipino Savings and Mortgage Bank vs.

CA, 334 SCRA 305).

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

f. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION Q: Is it an absolute rule that before recourse to certiorari is taken a motion for reconsideration must be filed?

3.

A: GR: Petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him. XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari where: 1. Order is a patent nullity, as where the court a quo has no jurisdiction; 2. Questions raised in the certiorari proceedings have been duly raised and

144

4. 5. 6.

7. 8.

passed upon by the lower court, or are the same as those raised and passed upon in the lower court; Urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the subject matter of the action is perishable; Under the circumstances, a motion for reconsideration would be useless; Petitioner was deprived of due process and there is extreme urgency for relief; In a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; Proceedings in the lower court are a nullity for lack of due process; Proceedings were ex parte or in which the petitioner had no opportunity to object; and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 9.

Issue raised is one purely of law or where public interest is involved.

without merit, prosecuted manifestly for delay, or raises questions which are too unsubstantial to require consideration?

g. RELIEFS PETITIONER IS ENTITLED TO Q: What are the reliefs a petitioner is entitled to with this action? A: The primary relief will be the annulment or modification of the judgment, order, or resolution or proceeding subject of the petition. It may also include such other Incidental reliefs as law and justice may require (sec 1, Rule 65) The court may also award damages in its judgment and the execution of the award for damages or costs shall follow the procedure in sec 1 of rule 39 (sec 9, rule 65). h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES Q: What is the rule on acts or omissions of the MTC or RTC regarding election cases? A: In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. (Sec.4, Rule 65, As amended by AM No. 07-7-12-SC, Dec. 12, 2007) i. WHERE TO FILE PETITION Q: When and where to file petition? A: 1. Supreme Court- Subject to the doctrine of hierarchy of courts and only when compelling reasons exist for not filing the same with the lower courts. 2. Court of Appeals only- If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or rules. 3. Court of Appeals and Sandiganbayan- Whether or not in aid of appellate jurisdiction. 4. Regional Trial Court- If the petition relates to an act or an omission of an MTC, corporation, board, officer or person. 5. COMELEC- In election cases involving an act or an omission of an MTC or RTC As amended by AM No. 07-7-12-SC, Dec. 12, 2007. j. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION Q: What is the effect of a petition for certiorari, prohibition or mandamus which is patently

A: The court may dismiss the petition. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari (Sec. 8, as amended by A.M. No. 07-7-12-SC). 8. QUO WARRANTO Q: What is quo warranto? A: A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Note: It is commenced by a verified petition brought in the name of the Republic of the Philippines or in the name of the person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. (Sec. 1)

Q: What are the classifications of quo warranto proceedings? A: 1.

Mandatory – brought by the Solicitor General or Public prosecutor when: a. directed by the President; b. upon complaint or when he has reason to believe that the cases for quo warranto can be established by proof (Sec. 2) c. at the request and upon the relation if another person (ex relatione), but leave of court must first be obtained. (Sec. 3)

2.

Discretionary – brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person, provided there must be: a. leave of court b. at the request and upon the relation of another person c. indemnity bond (Sec. 3)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Distinguish quo warranto in elective office from an appointive office. A: Elective Office Issue: eligibility of the respondent Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful occupant of the office.

Appointive Office Issue: validity of the appointment Court will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office.

a. DISTINCTION FROM QUO WARRANTO UNDER OMNIBUS ELECTION CODE

protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929).

b. WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS c. WHEN INDIVIDUAL MAY COMMENCE AN ACTION Q: Who commences the action? A: 1.

2.

Q: Distinguish quo warranto under Rule 66 from quo warranto under Omnibus Election Code. A: Quo Warranto Under Rule 66 Prerogative writ by which the government can call upon any person to show by what title he holds a public office or exercises a public franchise. Grounds: 1. usurpation 2. forfeiture 3. illegal association Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose. The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. Person adjudged entitled to the office may bring a separate action against the respondent to recover damages.

Quo Warranto In Electoral Proceedings To contest the right of an elected public officer to hold public office. Grounds: ineligibility or disqualification to hold the office

Petition must be filed within 10 days from the proclamation of the candidate.

May be filed by any voter even if he is not entitled to the office. Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code.

Note: If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election

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3.

The solicitor general or public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the proceding section can be established by proof. (mandatory quo warranto) The Solicitor General or a public prosecutor may, with the permission of court, bring an action at the request and upo n the relation of another person. (discretionary quo warranto) A person claiming to be entitled to a public office or position or unlawfully held or exercised by anoher may also bring action, in his own name.

Q: Against whom a quo warranto may be filed? A: The action must be filed against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; and 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. 1, Rule 66). Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec. 5.2, Securities Regulations Code).

Q: A group of businessmen formed an association in Cebu City calling itself Cars Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before the RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Manila. Is the contention of Cars Co. correct? Why?

Q: What are expropriation?

A: No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a Regional Trial Court in the City of Manila, as in the case, in the CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question)

A: 1. 2. 3.

the

requisites

of

a

valid

Due process of law Payment of just compensation Taking must be for public use

Q: What is the power of eminent domain? d. JUDGMENT IN QUO WARRANTO ACTION Q: What is the effect of a judgment in Quo Warranto case? A; When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of the parties to the action as justice requires (Sec. 9, Rule 66). e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE Q: What are the rights of persons adjudged to be entitled to the office? A: if judgment be rendered in favor of the person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law: 1. take upon himself the execution of the office; 2. may immediately thereafter demand all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates; and 3. may bring an action against the respondent to recover damages sustained by such persons by reason of usurpation. Note: when there is a judgment in a quo warranto action finding usurpation to be existent, respondent must be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his cost. Such further judgment may be rendered determining the respective rights in the public office, position, or franchise of all the parties to the action, as justice requires.

9. EXPROPRIATION Q: What is expropriation? A: The procedure for enforcing the right of eminent domain.

A: It is the right of the State to acquire private property for public use upon the payment of just compensation. Q: When is expropriation proper? A: It is proper only when the owner refuses to sell or, if the latter agrees, agreement as to the price cannot be reached. a. MATTERS TO BE ALLEGED IN COMPLAINT FOR EXPROPRIATION Q: Matters to be allege in a complaint for expropriation. A: right and purpose of expropriation, describing the property sought to be expropriated, and joining as defendants all persons owning or claiming to own any part thereof or interest therein (Sec. 1). b. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION Q: What are the two (2) stages in expropriation proceedings? A: 1.

2.

Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. Determination of just compensation.

Q: City of Iloilo (petitioner) represented by Mayor Treñas filed a complaint for eminent domain against Javellana seeking to expropriate two parcels of land. Mayor Treñas filed a motion for issuance of writ of possession alleging that it had deposited 10% of the amount of compensation of which the court issued. A writ of possession was subsequently issued, and petitioner was able to take physical possession of the properties. After which, the expropriation proceedings remained dormant. 16 years later, Javellana filed an ex parte motion/manifestation, where he alleged that when he sought to withdraw the money, he discovered that no deposit was made. Thus, Javellana filed a complaint for recovery of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

147

UST GOLDEN NOTES 2011 possession, fixing and recovery of rental and damages. The City of Iloilo argues that Javellana could no longer bring an action for recovery since the subject property was already taken for public use. The trial court in its orders and amended orders maintained that the assailed orders issued by it were interlocutory in character and as such are always subject to modification and revision by the court anytime. Is the order of expropriation final? A: Expropriation proceedings have two stages. The first phase ends with an order of dismissal, or a determination that the property is to be acquired for a public purpose. The second phase consists of the determination of just compensation. Both orders, being final, are appealable. An order of condemnation or dismissal is final, resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. Once the first order becomes final and no appeal thereto is taken, the authority to expropriate and its public use can no longer be questioned. Thus, it has become final, and the petitioner’s right to expropriate the property for a public use is no longer subject to review. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). Q: May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor ArsenioLacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees. Explain. A: Yes, Congress may enact a law to expropriate property but it cannot limit just compensation. The determination of just compensation is a judicial function and Congress may not supplant or prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of the Rules of Court, the ascertainment of just compensation requires the evaluation of 3 commissioners. (2006 Bar Question) c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY Q: What is the new system of immediate payment of initial compensation? A: RA 8974 provides a modification of sec 2, Rule 67 where the Government is required to make immediate and direct payment to the property

148

owner upon the filing of the complaint to be entitled to a writ of possession. As a relevant standard for initial compensation, the market value for the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of internal Revenue (BIR), whichever is higher and the value of the improvements and/or structures using the replacement cost method. Note: RA 8974 applies in instances when the national government expropriates property for national government infrastructure projects. Thus, if expropriation is engaged by the national government for purposes other that national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. The intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects is indeed very clear (MCWD v. J. King and Sons, GR 175983, April 16, 2009)

d. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION Q: What is the new system of immediate payment of initial just compensation? A: 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 RA 8974 (Sec. 4, RA 8974). e. DEFENSES AND OBJECTIONS Q: What must be filed when defendant has an objection? A: If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. 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. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Note: if there are no objections, he must file and serve a notice of appearance and manifestation to that effect. And thereafter, shall be entitled to notice of all proceedings.

Q: What is the duty of the court if the defendant waives his defenses or objections? A: If a defendant waives all defenses and objections not so alleged, the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award (Sec. 3, Rule 67). Q: How may appeal be taken from an order of expropriation by the party aggrieved thereby? A: It may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues e.g. issue on the right to expropriate or issue of just compensation Note: An appeal does not delay the right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use.

overruled or when no party appears to object to or to defend against the expropriation (Sec 4, Rule 67). Note: after the rendition of the order of expropriation, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except upon such terms as the court deems just and equitable (Sec 4, Rule 67)

g. ASCERTAINMENT OF JUST COMPENSATION Q: What is just compensation? A: Just compensation is equivalent to the fair market value of the property at the time of its taking or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by the defendant. Q: What is the formula for the determination of just compensation? A: JC = FMV + CD – CB If CB is more than CD then, JC = FMV

JC – Just compensation FMV – Fair market value CD – Consequential damages CB – Consequential benefits Note:Sentimental value is not computed.

Q: What is the effect if the order of condemnation was reversed? A: The owner shall repossess the property with the right to be indemnified for all damages sustained due to the taking (Sec. 11, Rule 67) Note: The landowner has the option of proving damages either in the same expropriation case or in a separate action instituted for that purpose, as the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such illegal expropriation (Republic v. Baylosis, G.R. No. L-6191, Jan. 31, 1955). f. ORDER OF EXPROPRIATION Q: What is an order of expropriation? A: An order of expropriation (or order of condemnation) will be issued declaring that the plaintiff has a lawful right to take the property for the public use or purpose described in the complaint upon the payment of just compensation in the event the objections of the defendant are

Q: What is the reckoning point for determining just compensation? A:The value of just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (Sec. 4) GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). Note: Typically, the time of taking is contemporaneous with the time the petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10, 2009)

XPNs: 1. Grave injustice to the property owner

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

2.

3.

4.

150

Air Transportation Office cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the land owners. (Heirs of Mateo Pidacan&RomanaEigo v. Air Transportation Office, G.R. No. 162779, June 15, 2007) The taking did not have color of legal authority To allow NAPOCOR to use the date it constructed the tunnels as the date of valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. It did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. Secondly, the “improvements” introduced by NAPOCOR, the tunnels, in no way contributed to an increase in the value of the land. The trial court rightly computed the valuation of the property as of 1992, when the owners discovered the construction of the huge underground tunnels beneath their lands and NAPOCOR confirmed the same and started negotiations for their purchase but no agreement could be reached. (NAPOCOR v. Ibrahim, G.R. No. 168732, June 29, 2007) The taking of the property was not initially for expropriation There was no taking of the property in 1985 by Public Estates Authority (PEA) for purposes of expropriation. As shown by the records, PEA filed with the RTC its petition for expropriation on Sept. 22, 2003.The trial court was correct in ordering the Republic, through PEA, upon the filing of its complaint for expropriation, to pay Tan just compensation on the basis of the BIR zonal valuation of the subject property. (Tan v. Republic, G.R. No. 170740, May 25, 2007) The owner will be given undue increment advantages because of the expropriation The value of the property in question was greatly enhanced between the time when the extension of the street was laid out and the date when the condemnation proceedings were filed. The owners of the land have no right to recover damages for this unearned increment resulting from

the construction of the public improvement for which the land was taken. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation, and would discourage the construction of important public improvements.(Provincial Gov’t of Rizal v. Caro de Araullo, G.R. No. L-36096, Aug. 16, 1933) h. APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT Q: May the court dispense with the assistance of commissioners in the determination of just compensation in expropriation proceedings? A: No. The appointment of commissioners in expropriation proceedings is indispensable. In such cases, trial with the aid of commissioners is a substantial right that may not be done away with capriciously or for no reason at all (MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992). Note: Objections to the order of appointment must be filed within 10 days from service of the order and shall be resolved within 30 days after all the commissioners received the copies of the objections (Sec. 5)

Q: When may the court appoint a commissioner in expropriation proceedings? A: Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court (Sec. 5, Rule 67). Q: When should the commissioner make a report? A: 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 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. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire (Sec. 7, Rule 67). i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT Q: What are the rights of the plaintiff after payment? A: After payment of just compensation, as determined in the judgment, the plaintiff shall have the right to enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or to retain possession already previously made in accordance with Sec 2, Rule 67. j. EFFECT OF RECORDING OF JUDGMENT Q: What is the effect of the recording of the judgment? A: When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of he place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose (Sec 13, Rule 69). 10. FORECLOSURE OF REAL ESTATE MORTGAGE Q: What is foreclosure of Real Estate Mortgage (REM)? A: It is the remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against the property used to secure said obligation. Note: It is commenced by a complaint setting forth the date and due execution of the mortgage; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and 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 (Sec. 1).

a. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE Q: What is judgment on foreclosure? A: It is the judgment of the court ordering the debtor to pay within a period not less than 90 days nor more than 120 days from the entry of judgment after ascertaining the amount due to the plaintiff (Sec. 2, Rule 68). Q: What is foreclosure sale? A: When the defendant 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 executions (Sec.3, Rule 68). Q: When is the sale of mortgaged property proper and how must it be brought about? A: if the mortgagor fails to pay the sum due within the period (90-120 days) stated by the court in its judgment, it would be good practice for the mortgagee to file a motion for the sale of the mortgaged property because under the Rules, the court shall order the sale of the property only “upon motion of the mortgagee” (sec 3, rule 68) Note: it has been held that the motion for the sale of the mortgaged property is non-litigable and may be made ex parte. After the foreclosure sale has been effected, the mortgagee should file a motion for the confirmation of the sale which requires notice and hearing.

b. SALE OF MORTGAGED PROPERTY Q: What is the effect of confirmation of the sale? A: It shall divest the rights in the property of all the parties to the action and shall vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec 3, Rule 68) Note: it is said that title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale.

c. DISPOSITION OF PROCEEDS OF SALE Q: How is the disposition of the proceeds of the sale done? A: The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue after

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 paying off the mortgage debt due, the same shall be paid to junior encumbrances in the order of their priority. If there be any further balance after paying them or if there be no junior encumbrances, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4)

On January 10, 2003, GAP filed an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the land. It also filed a deficiency claim for P800,000 against Arlene and Gretchen. The deficiency claim was opposed by Arlene and Gretchen.

Q: What claims shall be satisfied from the proceeds of the public sale of the mortgaged property (in order)? A:

1. 2.

Resolve the motion for the issuance of a writ of possession. Resolve the deficiency claim of the bank.

A: 1. 2. 3. 4.

Costs incurred in the sale of property; Claim of the person foreclosing the property; Claims of junior encumbrancers in the order of their priority; Residue goes to the mortgagor or his authorized agent, or any other person entitled to it.

1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property within 1 year after the sale (or registration of the sale). However, under Sec. 47 of the General Banking Law of 2000, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming sale. The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing. 2. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene, but it cannot be enforced against Gretchen, the owner of the mortgaged property, who did not assume personal liability of the loan. (2003 Bar Question)

d. DEFICIENCY JUDGMENT Q: What is deficiency judgment? A: It is the judgment rendered by the court holding the defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. Q: What are the instances when the court cannot render deficiency judgment? A: where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines, then it is not procedurally feasible. It is by nature in personam and jurisdiction over the person is mandatory. Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen as defendants. The court rendered judgment directing Arlene to pay the outstanding account of P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay the judgment debt within the period specified in the decision. At the foreclosure sale, the land was sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the sale was registered with the Registy of Deeds on January 5, 2002.

(1) INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT Q: What are the instances when the courts cannot render deficiency judgment? A: When the: 1. 2.

3.

4.

Case is covered by the Recto Law (Art. 1484, NCC); Mortgagor is a non-resident and is not found in the Philippines, unless there is attachment; Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and Mortgagee is a third person but not solidarily liable with the debtor.

e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE Q: Distinguish judicial extrajudicial foreclosure.

from

A: Judicial Foreclosure Governed by Rule 68

152

foreclosure

Extrajudicial Foreclosure Governed by Act 3135

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE There is only an equity of redemption except when the mortgagee is a bank Requires court intervention

Right of redemption exists

No court intervention necessary Mortgagee is given a special power of attorney Mortgagee need not be in the mortgage contract given a special power of to foreclose the attorney. mortgaged property in case of default. Note: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case, he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, 1959)

f. EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Q: Distinguish equity of redemption from right of redemption. A: Equity of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation Governed by Rule 68

appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)

11. PARTITION Q: What is partition? A: It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property.It presupposes the existence of a coownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code, that no co-owner shall be obliged to remain the coownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494). Note: It is commenced by a complaint. (Sec.1, Rule 69)

Q: What are the requisites of a valid partition? A:

Right of Redemption Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure sale Governed by Secs. 29-31, Rule 39

Note: There is no right of redemption in judicial foreclosure sale after the confirmation of sale except those granted by banks or banking institutions in favor of non-judicial persons as provided by the General Banking Act (Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989). In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. However, Sec. 47 of the General Banking Act provides that in case of extrajudicial foreclosure, juridical persons shall have the right to redeem the property until, but not after, the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure, whichever is earlier. The pendency of the action stops the running of the right of redemption. Said right continues after perfection of an appeal until the decision of the

1. 2.

3.

Right to compel the partition; Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded; and All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69)

a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE MADE DEFENDANT Q: Who may file and who should be made defendants? A: The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The defendants are all the co-owners. Q: What is the effect of non-inclusion of a coowner in an action for partition? A: 1.

2.

Before judgment – not a ground for a motion to dismiss. The remedy is to file a motion to include the party. After judgment – makes the judgment therein void because co-owners are indispensable parties.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Note: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it. (Sec. 12, Rule 69)

b. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION Q: What are the matters to be alleged in the complaint for partition? A: The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real estate of which partition is demanded, and shall join as defendants all other persons interested in the property (Sec. 1, Rule 69). He must also include a demand for the accounting of the rents, profits and other income from the property which he may be entitled to. These cannot be demanded in another action because they are parts of the cause of action for partition. They will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action. c. TWO (2) STAGES IN EVERY ACTION FOR PARTITION Q: What are the two aspects of partition proceedings? A: 1. 2.

Existence of co-ownership; and Accounting or how to actually partition the property.

Note: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner and there is co-ownership and that partition is not legally proscribed, the court will issue an order of partition. It directs the parties to partition the property by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed and such is to be recorded in the registry of deeds of the place in which the property is situated (Sec 2, Rule 69). There always exist the possibility that the parties are unable to agree on the partition. Thus, the next stage is the appointment of commissioners.

Q: What are the stages in an action for partition which could be the subject of appeal? A: 1.

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Order determining the propriety of the partition

2. 3.

Judgment as to the fruits and income of the property Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p. 596, 2009 ed.)

d. ORDER OF PARTITION AND PARTITION BY AGREEMENT Q: What is an order of partition? A: The order of partition is one that directs the parties or co-owners to partition the property Q: When does the court issue the order of partition? A: 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 so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition. Note: The court shall order the partition of the property among all the parties in interest, if after trial it finds that the plaintiff has the right to partition (Sec. 2, Rule 69). It was held that this order of partition including an order directing an accounting is final and not interlocutory and hence, appealable; thus, revoking previous contrary rulings on the matter. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.

Q: When is partition by agreement proper? A: The parties may make the partition among themselves by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of 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 (Sec. 2, Rule 69). e. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS, COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT Q: Can the appointment of commissioners be dispensed with in an action for partition? A: The appointment of commissioners is mandatory unless there is an extrajudicial partition between

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE the parties. They have the power to effect the partition but not to inquire into question of ownership or possession Note: if parties cannot agree, the court shall appoint not more than 3 commissioners of competent and disinterested persons to make partition. They shall make full and accurate report to the court of all their proceedings as to the partition. Upon the filing of such report, copies of which shall be served to the clerk of court upon 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. The court may upon hearing accept the report and render judgment in accordance with the same, may recommit to the commissioners for further proceedings, or reject the report and render judgment that shall effectuate a fair and just partition.

A; The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable (Sec. 13, Rule 69). h. PRESCRIPTION OF ACTION Q: What is the rule on prescription in an action of partition? A: Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or coheirs as long as there is a recognition of the coownership expressly or impliedly (Art. 494). Also, the action for partition cannot be barred by prescription 12. FORCIBLE ENTRY AND UNLAWFUL DETAINER

f. JUDGMENT AND ITS EFFECTS a. DEFINITIONS AND DISTINCTION Q: What should the judgment contain and its effects? A: The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action (Sec. 11, Rule 69). a. 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. b. 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 the payment or payments, free from the claims of any of the parties to the action. g. PARTITION OF PERSONAL PROPERTY Q: What is the rule on partition of personal property?

Q: What is forcible entry? A: It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to recover possession founded upon illegal possession from the beginning. Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid forcible entry? A: 1.

2.

A person is deprived of possession of any land or building by force, intimidation, threat, strategy, or stealth; and Action is brought within 1 year from the unlawful deprivation. (Sec. 1)

Q: What are the questions to be resolved in an action for forcible entry? A: 1. 2.

3.

Who has actual possession over the real property; Was the possessor ousted therefrom within one year from the filing of the complaint by force, intimidation, strategy, threat or stealth; and Does the plaintiff ask for the restoration of his possession (Dizon v. Concina, G.R. No. 23756, Dec. 27, 1969)

Q: What is unlawful detainer? A: It is unlawful detention by a person who has acquired possession rightfully, but who detains the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 property after the right to keep possession has ended.

force, intimidation, strategy, threat or stealth.

Note: It is commenced by a verified complaint. (Sec. 1)

No previous demand for the defendant to vacate the premises is necessary.

Q: What are the requisites of a valid unlawful detainer? A: 1.

2.

3.

Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied; Action is brought within 1 year after such unlawful deprivation or withholding of possession; and Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. (Sec. 1)

Q: Is formal contract a prerequisite in unlawful detainer? A: The existence of a formal contract is not necessary in unlawful detainer. Even if there is no formal contract between the parties, there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). Q: Does the amount of rents and damages prayed for in an action for forcible entry and unlawful detainer affect the jurisdiction of the courts? A: No. The amount of rents and damages claimed does not affect jurisdiction of the MTCs because the same are only incidental or accessory to the main action (Lao SengHian v. Lopez, G.R. No. L-1950, May 16, 1949). Note: If only rents or damages are claimed in an ordinary action, the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC.

Q: Distinguish forcible entry from unlawful detainer. A: Forcible Entry (Detentacion) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by

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Unlawful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to

the possession of the property under his contract with the plaintiff. Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract.

The plaintiff must prove that he was in prior The plaintiff need not physical possession of the have been in prior physical premises until he was possession. deprived thereof by the defendant. The 1 year period is Period is counted from the generally counted from date of last demand or last the date of actual entry on letter of demand. the land.

b. DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: What are the possessory actions on real property? A: Accion Interdictal Summary action for the recovery of physical possession where the disposses-sion has not lasted for more than 1 year. All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

Accion Publiciana

Accion Reinvindicatoria

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

An action for the recovery of ownership, which necessarily includes the recovery of possession.

RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila.

RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila.

MTC has jurisdiction if the value of the property does not exceed the above amounts.

MTC has jurisdiction if the value of the property does not exceed the above amounts.

Note: Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Sudaria v..Quiambao, GR No. 164305, November 20, 2007)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What rule should govern the proceedings of accion interdictal? A: GR: Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession or right to possession of property. XPN: When the decision of the MTC is appealed to the RTC, the applicable rules are those of the latter court (Refugia v. CA, G.R. No. 118284, July 5, 1996). c. JURISDICTION IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: In which court accion publiciana and accion reinvindicatoria filed? A: The actions of forcible entry and unlawful detainer are within the exclusive and original jurisdiction of the MTC, MeTC and MCTC (Sec. 33[2], BP 129; RA 7691) and shall be governed by the rules on summary procedure irrespective of the amount of damages or rental sought to be recovered (Sec. 3, Rule 70). d. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED Q: Who may institute the action? A: Subject to the provisions of the next succeeding section, 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 (Sec. 1, Rule 70). e. PLEADINGS ALLOWED Q: What are the pleadings allowed?

A: The only pleadings allowed to be filed are the complaint, compulsory counterclaim and crossclaim pleaded in the answer, and the answers thereto. All pleadings shall be verified (Sec. 4, Rule 70). f. ACTION ON THE COMPLAINT Q: What action will the court make upon receipt of the complaint? A: The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons (Sec. 5, Rule 70). g. WHEN DEMAND IS NECESSARY Q: When is demand necessary? A: Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2). The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure 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 that vests upon the lessor a cause of action. Q: In what form should the demand be made? A: The demand may be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2). It has been ruled, however, that the demand upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. h. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION Q: Can the court grant injunction while the case is pending? A: The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 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 (Sec. 15, Rule 70). i. RESOLVING DEFENSE OF OWNERSHIP Q: In what instances may the court resolve issue of ownership? A: When the defendant raises the issue of ownership, the court may resolve the issue of ownership only under the following conditions: (a) When the issue of possession cannot be resolved without resolving the issue of ownership; and (b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. 16). Note: The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant raises the question of ownership and the issue of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession (Sec. 3, RA 7691).

j. HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT Q: How is the execution of judgment stayed? A: Defendant must take the following steps to stay the execution of the judgment: 1. Perfect an appeal; 2. File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from; and 3. Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises (Sec. 19, Rule 70).

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k. SUMMARY PROCEDURE; PROHIBITED PLEADINGS Q: What is the nature of an action for forcible entry and unlawful detainer? A: Forcible entry and unlawful detainer actions are

summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Tubiano vs. Riazo, 335 SCRA 531). These action shall both fall under the coverage of the Rules of Summary Procedure irrespective of the amount of damages or unpaid rental sought to be recovered (Sec. 3, Rule 70). Q: What are the prohibited pleadings and motion under Rule 70? A: Prohibited pleadings and motions:

1.

Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions 13. CONTEMPT Q: What is contempt? A: It is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with, or prejudice litigant or their witnesses during litigation (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985) Note: It is commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein (Sec. 4).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE a. KINDS OF CONTEMPT

d. e.

Q: What are the kinds of contempt? A: 1. 2.

f.

Direct or indirect, according to the manner of commission. Civil or Criminal, depending on the nature and effect of the contemptuous act.

g.

Q: Distinguish direct from indirect contempt? A: Direct Contempt Committed in the presence of or so near a court. Summary in nature

Indirect Contempt Not committed in the presence of the court. Punished after being charged and heard

If committed against: 1. RTC – fine not exceeding P2,000 or imprisonment not exceeding 10 days or both. 2. MTC – fine not exceeding P200 or imprisonment not exceeding 1 day, or both.

IF COMMITTED AGAINST: 1. RTC – FINE NOT EXCEEDING P30,000

Remedy:Certiorari or prohibition Contempt in facie curiae

Remedy: Appeal (by notice of appeal) Constructive contempt

OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH

2.

MTC – fine not exceeding P5,000 or imprisonment not exceeding 1 month or both

Failure to obey a subpoena duly served. Assuming to be an attorney or an officer of the court without authority. Rescue or attempted rescue, of a person or property in the custody of an officer. Any improper conduct tending to degrade the administration of justice (Sec. 3)

Q: Distinguish criminal contempt from civil contempt. A: Criminal Contempt

Civil Contempt

Punitive in nature

Remedial in nature

Purpose is to preserve the court’s authority and to punish disobedience of its orders

Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons

Intent is necessary

Intent is not necessary

State is the real prosecutor

Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected

Proof required is proof beyond reasonable doubt.

Proof required is more than mere preponderance of evidence

If accused is acquitted, there can be no appeal.

If judgment is for respondent, there can be an appeal

Q: What are the grounds of contempt? A: 1.

2.

Direct contempt a. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings b. Disrespect towards the court c. Offensive personalities toward others; or d. Refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so (Sec. 1) Indirect contempt a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; b. Abuse or any unlawful interference with the proceedings not constituting direct contempt. c. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court or unauthorized intrusion to any real property after being ejected.

Q: Lawyer Mendoza, counsel for the accused in a criminal case, was cited for direct contempt by Judge Tagle and was sentenced to 10 days imprisonment. Lawyer Mendoza was placed in prison immediately. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Is Judge Tagle correct? A: No. An order of direct contempt is not immediately executory or enforceable. The contemner must be afforded a reasonable remedy to extricate or purge himself of the contempt. Under Sec. 2, Rule 71, of the Rules of Court, a person adjudged in direct contempt by any court

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him (Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27, 2006). b. PURPOSE AND NATURE OF EACH Q: What is the purpose of the power to contempt? A: The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their institution. Without such guarantee, said institution would be resting on shaky foundation (Cornejovs.Tan, 85 Phil. 772). Q: What is the nature of contempt power? A: The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders and mandates of the courts, and, consequently, to the due administration of justice. Q: What are the dual aspects on the power to punish contempt? A: 1.

2.

Primarily, the proper punishment of the guilty party for his disrespect to the courts; and Secondarily, his compulsory performance of some act or duty required of him by the court and which he refuses to perform.

c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY Q: What is theremedy against direct contempt and its penalty? A: 1.

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The penalty for direct contempt depends upon the court which the act was committed; a. If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or both; b. If the act constituting direct contempt was committed against a

2.

lower court, the penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1) day, or both (Sec. 1)’; c. If the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt (Sec. 2). Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct contempt shall be suspended. The suspension however shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered the judgment. This bond is conditioned upon his performance of the judgment should the petition be decided against him. d. REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

Q: What is theremedy against indirect contempt and its penalty? A: 1. The punishment for indirect contempt depends upon the level of the court against which the act was committed; (a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may be punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or both; (b) Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Sec. 7); (c) Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE contempt against such persons or entities. (2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against (Sec. 11). e. HOW CONTEMPT PROCEEDINGS ARE COMMENCED Q: How may an action for indirect contempt be commenced? A: 1.

2.

By order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt (motuproprio); or By a verified petition with supporting particulars and certified true copies of the necessary documents and papers (independent action) (Sec. 4).

Note: The first procedure applies only when the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. The second mode applies if the contemptuous act was committed not against a court or a judicial officer with authority to punish contemptuous acts. (Nazareno v. Barnes, G.R. No. L-59072, Apr. 25, 1984) The court does not declare the respondent in default since the proceeding partakes the nature of a criminal prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982).

Q: What are the procedural requisites before the accused may be punished for indirect contempt? A: 1. 2. 3.

A charge in writing to be filed; An opportunity for the person charged to appear and explain his conduct; and To be heard by himself or counsel. (Regalado v. Go, G.R. No. 167988, Feb. 6, 2007)

NOTE: The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities

pursuant to law, Rule 71 shall apply suppletorily (Sec 12, Rule 71) Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases.

Q: May a non-party be held for contempt? A: No, unless he is guilty of conspiracy with any one of the parties in violating the court’s orders (DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30, 1982). Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz, however, interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged and falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray and Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest. But they were denied outright by Judge Victoria. Is Judge Victoria correct? A: No. Direct contempt is a contumacious act done facie curiae and may be punished summarily without hearing. Indirect or constructive contempt, in turn, is one perpetrated outside of the sitting of the court. Here the use of falsified and forged documents is a contumacious act. However, it constitutes indirect contempt not direct contempt. The imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Sec. 3, Rule 71, acontemner may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel. Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Thus, the judge erred in declaring summarily that Ray and Judge Velasco are guilty of direct contempt and ordering their incarceration. He should have conducted a hearing with notice to Ray and Judge

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Velasco (Judge Espaool v. Formoso, G.R. No. 150949, June 21, 2007).

g. WHEN IMPRISONMENT SHALL BE IMPOSED Q: When shall imprisonment be imposed?

f. ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT Q: What are the acts which are deemed punishable as indirect contempt? A:After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: 1.

2.

3.

4.

5.

6. 7.

Misbehavior an officer of a court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; Assuming to be an attorney or an officer of a court, and acting as such without authority; Failure to obey a subpoena duly served; The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3).

A: When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. Indefinite incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. When a person or party is legally and validly required by a court to appear before it for a certain purpose, and when that requirement is disobeyed, the only remedy left for the court is to use force to bring the person or party before it. Note: The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey although able to do so. In effect, it is within the power of the person adjudged guilty of contempt to set himself free.

h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES Q: What is the rule on contempt against quasijudicial bodies? A: The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12).

Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of justice.

162

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS IV. SPECIAL PROCEEDINGS

A: It is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec. 3(c), Rule 1)

Q: What is Special Proceeding?

NOTE: It is a proceeding in rem.

Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding. A: Ordinary Action

Special Proceeding

Special Civil Action

To protect or enforce a right or prevent or redress a wrong Involve 2 or more parties – plaintiff and defendant Governed by ordinary rules, supplemented by special rules

Involves the establishment of a right, status, or fact May involve only one party – only petitioner Governed by special rules, supplemented by ordinary rules

Civil Action subject to specific rules. Involves two or more parties

Initiated by a complaint, and parties respond through an answer

Initiated by a petition and parties respond through an opposition

Heard by courts of general jurisdiction Issues or disputes are stated in the pleadings of the parties

Heard by jurisdiction

Adversarial

Not adversarial

Based on a cause of action

Not based on a cause of action (except habeas Corpus)

courts

of

Ordinary rules apply primarily but subject to specific rules Some are initiated by complaint, while some are initiated by petition

limited

Issues are determined by law

Some special civil action have no cause of action

Q: What are the subject matters of special proceedings? A: Special Proceeding

Rules 73-90

Settlement of Estate of Deceased Persons

Jurisdiction

Venue

RTC- Gross value of the estate exceeds 400,000/ 500,000 (Manila) MTC- Gross value of the estate does not exceed 400,000/ 500,000

1.

NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs

2.

If inhabitant (resident) of the Philippines (whether citizen or alien)- Court of the province/ city where the deceased resides at the time of death Inhabitant (non- resident) of foreign country- court of any province/ city wherein he had estate

1.

Rule 91

Escheat

RTC

Ordinary escheat proceedings: RTC a. If resident- place where the deceased last resided b.If non-resident- place where he had estate 2. Reversion of land to the State for violation of the Consitution/ Laws- RTC where the land lies in whole or in part 3. Unclaimed deposits (for 10 years)- RTC of the city/ province where the bank is located NOTE: All banks located in 1 province where the court is located may be made party- defendant in 1 action.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

Rule 98

Trustees

Rule 101

Hospitalization insane person

Rule 103

Change of name

Rule 108 Rule 107 A.M. No. 00-8-10-SC Rule 104

RA 9048

Rules 9297; A.M. No. 03-0205-SC A.M. No. 02-06-02-SC A.M. No. 02-6-02-SC A.M. No. 02-6-02-SC

of

RTC

Cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/change of first name or nickname

RTC RTC RTC SEC Local civil general

registry/Consul

Family Court – In case of minors RTC – In cases other than minors

Guardianship

Domestic Adoption Rescission Adoption Inter-country Adoption

RTC

of

Where the will was allowed or where the property or portion thereof affected by the trust is situated Where such insane person may be found Where petitioner resides for 3 years prior to the filing of the petition Where the corresponding registry is located

civil

Where the absentee resided before his disappearance Where principal office of the corporation is situated Where principal office of corporation is situated Local civil registry office where the record is kept/where the interested party is presently residing or domiciled 1. If resident- place where minor/ incompetent resides 2. If non-resident- place where minor/ incompetent has property

Family Court

Where the adopter resides

Family Court

Where the adoptee resides

Family Court or the InterCountry Adoption Board

Where the adopter resides

Rule 99

Custody of Minors

Family Court

Where petitioner resides or where the minor may be found

Rule 105

Judicial Approval of Voluntary Recognition of Minor Natural Children

Family Court

Where the child resides

Family Code

Summary Proceedings 1.

2. R.A. 8369 3.

Rule 102

164

RTC-Gross value of the estate exceeds 400,000/500,000 MTC- does not exceed 400,000/ 500,000

Petitions on Foster care and Temporary Custody Declaration of Nullity of Marriage Cases of Domestic Violence Against Women and Children Habeas Corpus

Where the petitioner resides or where the child resides if it involves minors Actions mentioned in the Family Courts Act Family Court

Family Court

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

SC, CA, RTC, MTC in the province or city in case there is no RTC judge; SB only in aid of its appellate jurisdiction

Where the aggrieved party is detained (RTC)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS A.M. No. 03-04-04SC

Habeas Corpus in Relation to Custody of Minors

Family Court, CA, SC

A.M. No. 07-9-12-SC

Writ of Amparo

RTC, SB, CA or SC or any justice thereof

A.M. No. 08-1-16-SC

Writ of habeas data

RTC, SB, CA or SC or any justice thereof

A.M. No. 09-6-8-SC

Writ of Kalikasan

SC or any stations of CA

A.M. No.02-1110-SC

A.M. No. 02-11-11SC

Declaration of nullity of void marriage/Annulment of marriage

Legal Separation

Where the petitioner resides or where the minor may be found Where the threat, act or omission was committed or any of its elements occurred 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 Where the unlawful act, omission or threat was committed

Family Court

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

Family Court

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

Q: What is the publication requirement in special proceedings? A: Special Proceeding Administrative change of first name or nickname Corporate rehabilitation Settlement of estate of deceased persons Judicial change of name Judicial cancellation or correction of entries in the civil registry Domestic adoption Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term) Declaration of absence Escheat Guardianship Trustees Custody of minors Hospitalization of insane person Rescission of adoption Administrative cancellation or correction of entries Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and

Publication of Order of Hearing Once a week for 2 consecutive weeks

Once a week for 3 consecutive weeks

Once a week for 3 consecutive weeks Note: The declaration of absence shall not take effect until six (6) months after its publication in a newspaper of general circulation. Once a week for 6 consecutive weeks

None

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

165

UST GOLDEN NOTES 2011 children Summary proceedings Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2 consecutive weeks.

Q: Who should be notified in special proceedings? A: Special proceeding Settlement of estate of deceased persons Trustees Hospitalization of insane person Judicial change of name Judicial cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/ change of first name or nickname Guardianship Domestic Adoption Rescission of Adoption Inter-country Adoption Custody of Minors Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan Summary proceedings 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and children Declaration of nullity of void marriage / Annulment of marriage Legal separation Escheat

Interested parties The minor if above 14 years of age/incompetent himself/Interested parties on the property of the ward. General or special notice may be given. Biological parents/Solicitor General Adopter Biological parents, if any/guardian Biological parents/guardian if any To the person to which the writ is directed Respondent Respondent Respondent Respondent and interested party Solicitor General/Public Prosecutor City/Provincial Prosecutor/ Respondent City/Provincial prosecutor/ Respondent None

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESSES 1. WHICH COURT HAS JURISDICTION Q: Which court has jurisdiction over the estate of the deceased? A: Regional Trial Court Gross value of the estate exceeds 500,000 (within Metro Manila) or 400,000 (outside Metro Manila)

166

To whom notice must be given Executor/administrator/any interested party All persons interested on the trust On the person alleged to be insane and to the one having charge of him or any of his relatives Interested parties/Solicitor General Persons named in the petition/Solicitor General/Civil Registrar impleaded as respondent Heirs/legatees/devisees/creditors/other interested persons Creditors/Debtors Creditors

Metropolitan Trial Court

Q: State the rule on venue in judicial settlement of estate of deceased persons. A: Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien

Non-Resident Court of the province/city wherein he had the estate

Gross value of the estate does not exceed 500,000/400,00

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE

v. Santiago, L- 1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (De Borja v. Tan, 77 Phil 872).

Q: What is venue? A: Under the Rules of Court, the province where the estate of the deceased shall be settled (Cuenco v. CA, G.R. No. L-24742, October 26, 1973) Q: Is venue waivable? A: Yes. Wrong venue is a waivable procedural defect, and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss. Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI, G.R. Nos. L-21938-39, May 29, 1970).

Q: What constitutes residence? A: It is the personal, actual, physical habitation, his actual residence or place of abode (Fule v. CA, G.R. No. L-40502, Nov. 29, 1976) and not his permanent legal residence or domicile. Note: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.

Q: What is the remedy if Venue is improperly laid? A: GR: ORDINARY APPEAL should be filed, not certiorari or mandamus. XPN: CERTIORARI OR MANDAMUS should be filed when want of jurisdiction appear on the record of the case. Q: What is Jurisdiction?

the

Principle

of

Preferential

A: GR: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts (Sec. 1 of Rule 73.) The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval

XPN: Estoppel by Laches Note: The rule applies to both testate and intestate proceedings.

3. EXTENT OF JURISDICTION OF PROBATE COURT Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate of decedent? Explain. A: GR: No, because probate courts are courts of limited jurisdiction. XPNS: 1. Provisionally, for the sole purpose of including the property in the inventory, without prejudice to its final determination in a separate action; 2. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership to the probate court, provided that no rights of third persons are prejudiced; 3. If the question is one of collation or advancement; or 4. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third parties are prejudiced. (Agpalo, Handbook on Special Proceedings, pp. 10-12, 2003 ed.) Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Is Richard correct? A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

167

UST GOLDEN NOTES 2011 Q: What may the court do in the exercise of its probate jurisdiction? A: It may issue warrants and processes to compel the attendance of witnesses or carry into effect their orders and judgments and all other powers granted them by law. (Sec. 3, Rule 73) Q: May the probate court issue a writ of execution? A: GR: No, because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. XPNS: 1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88); 2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); and 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142; De Valera v. Hon. Ofilada, G.R. No. L-27526, Sept. 19, 1974). 4. To satisfy the claim in a summary proceedings of creditors or heirs who appear within two years from distribution.

Q: Where should the estate be settled if the marriage is dissolved by death of either spouse or both? A: When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. (Sec. 2, Rule 73) Note: If separate proceedings have been instituted for each estate, both proceedings may be consolidated if they were filed in the same court.

The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. It does not apply to siblings, parents and child or other relatives no matter how close. (Benigno v. de la Peña, G.R. No. L-38036, Oct. 15, 1932) Notes: 1.

2.

3.

Q: Can a declaration of heirship be made in an independent action? A: 1.

2.

168

If the special proceedings are pending, or if there are no special proceedings filed but there is a need to file one, then the determination of heirship should be raised and settled in said special proceedings. If the special proceeding had been instituted but had been finally closed and terminated, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the deceased (Portugal and Portugal, Jr. v. PortugalBeltran, G.R. No. 155555, Aug. 16, 2005).

4.

The jurisdiction of a court as well as the concomitant nature of the action is determined by the averments in the complaint and not by the defenses contained in the answer. (Vda. De Manalo v. CA, 349 SCRA 135). The residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue (Cuenca v. CA 53 SCRA 360, 1973.) Testate proceedings take precedence over intestate proceedings for the same estate. If in the course of the intestate proceedings, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that state, an administrator had already been appointed (Uriarte v. CFI, 33 SCRA 252, 1970.) Mere discovery of a document purporting to be the last will and testament of decedent after appointment of an administrator does not ipso facto nullify the letters of administration already issued until the will has been proven and allowed (Advincula v. Teodoro, 99 Phil 413).

4. POWERS AND DUTIES OF PROBATE COURT Q: What are the powers and duties of a Probate Court? A: In probate proceedings, the court: 1. Orders the probate of the will of the decedent 2. Grants letters administration

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 3. Supervises and controls all acts of administration 4. Hears and approves claims against the estate of the deceased 5. Orders payment of lawful debts 6. Authorizes sale, mortgage or any encumbrance of real estate 7. Orders the payment of taxes and other charges 8. Directs the delivery of the estate to those entitled thereto.

Allowed only in intestate succession There must be no outstanding debts of the estate at the time of the settlement Resorted at the instance and by agreement of all heirs

Allowed in both testate and intestate succession Available even if there are debts, it is the court which will make provision for its payment May be instituted by any interested party even a creditor of the estate without the consent of all the heirs Amount of bond is to be determined by the court

Note: The court acts as a trustee and as such must jealously guard the estate and see to it that it is wisely and economically administered, not dissipated.

Amount of bond is equal to the value of personal property

Q: What are the powers and duties of a probate court?

Q: Distinguish the procedure in extrajudicial settlement from summary settlement

A:

A: To pass upon the issue regarding: 1. Validity of the will (i.e. formalities required by law) 2. Distribute shares 3. Determine who are the legal heirs 4. Issue warrants and processes to secure attendance of witnesses 5. Determine and rule upon issues relating to settlement of the estate, such as administration, liquidation, and distribution of the estate 6. Determine the following: a. Heirs of the decedent; b. Recognition of natural child; c. Validity of disinheritance effected by testator; d. Status of a woman who claims to be the lawful wife of the decedent ; e. Validity if waiver of hereditary heirs; f. Status of each heir; g. Whatever property in the inventory is conjugal or exclusive property of deceased spouse; or h. Matters incidental or collateral to the settlement and distribution of the estate. B.

A. EXTRAJUDICIAL SETTLEMENT AGREEMENT BETWEEN THE HEIRS

BY

Division of estate made through a public instrument or affidavit of adjudication Filing of the public instrument or affidavit of adjudication with the proper Register of Deeds Publication of notice of the fact of extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation

Personal property- file a bond equivalent to its amount. Real property- subject to a lien in favor of the creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond

SUMMARY SETTLEMENT OF ESTATES

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED EXTRA JUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS No court intervention The value of the estate is immaterial

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE Requires summary adjudication Gross value of the estate must not exceed P10,000

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

169

UST GOLDEN NOTES 2011 B. SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE Petition for summary settlement to be filed in the MTC with an allegation that the gross value of the estate, whether he died testate or intestate does not exceed P10,000

Publication of notice once a week for 3 consecutive weeks; court may likewise order that notice be given to persons as the court may direct

Note: While the Rules of Court provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

Q: What is a bond? Hearing to be held not less than 1 month nor more than 3 months from the date of last publication of notice

The court proceeds summarily without the necessity of appointing an executor or administrator; and to make orders as may be necessary The court may also require a bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Section 4

Q: When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites)

When the decedent:

2.

Left no will and no debts; and the heirs are all of age; and Of the minors are represented by their judicial or legal representatives duly authorized for the purpose.

Q: What are the requisites before an extrajudicial settlement of estate could be resorted as evidence of its validity? (Procedural Requisites) A: 1.

2. 3.

4.

170

Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by adjudication.

Q: When is a bond required to be filed in extrajudicial settlement of estate? A: When personal property is involved, a bond is required. On the other hand, if it is a real property, it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted by a bond. (Sec. 1, Rule 74) Note: The same provision on the bond and lien also applies in summary settlement of estate. (Sec. 2, Rule 74)

A:

1.

A: It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Section 4, Rule 74.

Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir;

Q: Is a public instrument necessary for the validity of the extrajudicial settlement? A: No, the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947). Even a private instrument, oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. However, reformation of the instrument may be compelled. Note: Public instrument is required in transfer and registration of title to the heirs.

Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action of partition.

Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs?

Filed with the Register of Deeds; Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks; and Bond filed equivalent to the value of personal property. (Sec. 1, Rule 74)

A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS of satisfying such lawful participation. (Sec. 4, Rule 74)

3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR

Q: Why is publication of the extrajudicial settlement necessary?

Q: What is an Affidavit of Self-Adjudication by sole heir?

A: To notify and bind the whole world of the extrajudicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec. 1, Rule 74).

A: It is an affidavit required by Sec.1, Rule 74 to be executed by the sole heir or a deceased person in adjudicating to himself the entire estate left by the decedent.

Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he did not participate in the proceedings.

4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE

Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74 have been strictly complied with? A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptive period to question such partition. (Sec. 4, Rule 74) 2. TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply? A: After the expiration of two years from the extrajudicial partition, distributees or heirs are barred from objecting to an extra- judicial partition. The two year prescriptive period applies only: 1.

2.

To persons who have participated or taken part or had notice of the extrajudicial partition; and When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians.

Note: It is only a bar against the parties who had not taken part in the extrajudicial proceedings, but not against third persons not parties thereto. (Herrera, Remedial Law III-A, 39)

Q: What is summary settlement of estate? A: It is a judicial proceeding, without appointment of executor or administrator, and without delay, the competent court summarily proceeds to estimate the value of estate of the decedent; allow his will if any; declare his heirs, devisees, and legatees; distribute his net estate among them, who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them, respectively. Q: Summary settlement of estates of small value, when is it allowed? A: Only when gross estate does not exceed P10,000. Amount is jurisdictional. (Sec. 2, Rule 74) Notes: 1. 2.

3.

4.

5.

6.

Q: Does the two year period apply for a claim of minor or incapacitated person? A: If on the date of the expiration of the period of two years prescribed, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one year after such disability is removed. (Sec. 5, Rule 74)

7. 8.

Amount is jurisdictional; Summary settlement of estate of small value is allowed in both testate and intestate estates; Available even if there are debts as the court will make provisions for the payment thereof. In accordance with B.P. Blg. 129, the jurisdiction is vested to the Municipal Trial Courts. Instituted by any interested party and even by a dredirtor of the estate, without the consent of all the heirs. The date for hearing, shall be set by court not less than 1 month nor more than 3 months from date of publication of last notice and the order of hearing be published once a week for 3 consecutive weeks in a newspaper of general circulation. Notice shall be served upon such interested persons as the court may direct. Bond in an amount fixed by the court (not value of the personal property) conditioned upon payment of just claims under sec. 4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

171

UST GOLDEN NOTES 2011 Q: When can settlement of estates in courts be compelled? A: 1.

2. 3.

The existence of debts against the estate; If there is undue deprivation of lawful participation payable in money. (Sec. 4, Rule 74)

If there is undue deprivation of lawful participation in the estate; 5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE

Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate? A: CLAIM AGAINST THE BOND OR REAL ESTATE

GROUNDS: (Section 4, Rule 74) a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate. Should be brought within 2 years after settlement and distribution of the estate

COMPEL THE SETTLEMENT ESTATE IN COURTS ACTION FOR RESCISSION

OF

ACTION FOR RECONVEYANCE OF REAL PROPERTY

REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT

PETITION FOR RELIEF (SUMMARY SETTLEMENT)

ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT ORDINARY ACTION BUT NOT AGAINST THE BOND

Should be brought within 2 years after settlement and distribution of the estate It must be availed of within 5 years from the time the right of action accrues. (Art. 1149, NCC) Also applicable in judicial proceedings GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith, action is imprescriptible. (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings. Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest against both; or c. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. Note: May be availed of after judgment but before its finality or appeal by the aggrieved party. On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. (Rule 38.) Also applicable in judicial proceedings. On the ground of fraud which should be filed within 4 years from the discovery of fraud.

If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. Note: It must be brought within 10 years from the time the right of action accrues. [Art. 1144(c)] Also applicable in judicial proceedings. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

172

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS C. PRODUCTION AND PROBATE OF WILL 1. NATURE OF PROBATE PROCEEDING 2. Q: What is probate? A: Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court, (also known as Allowance of Will).

Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will.

Q: Why is probate necessary? A: To settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable. (Fernandez v. Dimagiba, G.R. No. L23638, Oct. 12, 1967) Q: What is the nature of a probate proceeding? A: 1. IN REM- It is binding upon the whole world.

NOTE: The decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or independent action or proceeding.

2. WHO MAY PETITION FOR PROBATE Q: Who may file petition for allowance of will? A: 1. 2.

2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed in the proper court.

3.

4. 3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator

5.

A: 1.

A:

XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1.

Testator himself during his lifetime (Sec. 1, Rule 76); or Any creditor – as preparatory step for filing of his claim therein.

Q: Who are the people entitled to notice in a probate hearing?

Q: Does the probate court look into the intrinsic validity of the will?

GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will.

Executor (Sec. 1, Rule 76); Devisee or legatee named in the will (Sec. 1, Rule 76); Person interested in the estate; e.g. heirs Note: An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate such as a creditor. (Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967)

Note: However, a will may be sustained on the basis of Article 1080 of the NCC which states that, “if the testator should make a partition of his property by an act intervivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir. (Mang- Oy v. CA, L-27421, 1986)

4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest. (Fernandez v. Dimagiba, L- 23638, 1967)

anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L23445, June 23, 1966). Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).

2. 3.

4.

Designated or known heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known. Person named executor, if he not the petitioner. To any person named as co-executor not petitioning, if their places of residence be known. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. (Sec. 4, Rule 76)

If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 D.

ALLOWANCE OR DISALLOWANCE OF A WILL

1. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL Q: What are the contents of a petition for allowance of a will?

Holographic will

A: 1. Jurisdictional facts: I. death of the testator and II. his residence at the time of his death III. if non- resident, the province where the estate was left 2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent. 3. The probable value and character of the property of the estate. 4. The name of the persons for whom letters are prayed. 5. The name of the person having custody of the will if it has not been delivered to the court. NOTE: But no defect in the petition shall render void the allowance of the will or the issuance of letters testamentary or of administration with the will annexed.

Q: What is the effect of the allowance of a will? A: The judgment or decree of the court allowing the will is: 1. 2.

Conclusive as to its extrinsic validity; Not subject to collateral attack and it stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal by a higher court; and 3. Conclusive on the whole world. (Yuseco v. CA, G.R. Nos. L-40719-21, Dec. 29, 1975) Q: How should a will be proved? A: Uncontested

Notarial will

174

The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law. (Sec. 5, Rule 76)

Contested

At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator. (Sec. 5, Rule 76)

The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator. (Sec. 11, Rule 76)

Note: At the hearing, compliance with publication and notice must first be shown before the introduction of testimony in support of the will.

In the absence of competent witness, and if the court deems it necessary, expert testimony may be resorted to. (Sec. 5, Rule 76) Q: What is the remedy if none of the subscribing witnesses resides in the province where probate is being conducted? A: A motion for taking of deposition of one or more of them. (Sec. 7, Rule 76) Note: Court may also authorize photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked questions with respect to matters pertaining to the will. (Sec. 7, Rule 76)

Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses? A: 1. 2.

The subscribing witnesses are dead or insane; or None of them resides in the Philippines. (Sec. 8, Rule 76)

Q: What matters shall be testified on by the other witnesses? A:

All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will. (Sec. 11, Rule 76)

1. 2.

The sanity of the testator; and Due execution of the will.

Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses, or any of them. (Sec. 8, Rule 76)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS Q: What proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed?

2.

3. A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. (Sec. 12, Rule 76)

4.

Q: What if the holographic will is contested?

5.

A: If the holographic will is contested, the burden of disproving the genuiness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. (Sec. 12, Rule 76) Q: What is the rule on proof of lost or destroyed will? A: If notarial will, it may be proven by a photostatic or xerox copy of the will coupled with the testimonies of the attesting witnesses. If holographic will, a photostatic copy or exerox copy of the lost will would not suffice. But if there are no other copies available then a photostatic or xerox copy would suffice to serve as a comparison to the standard writings of the testator. No testimonies of witnesses is allowed because the will was made entirely by the testator himself. (Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982) Q: What are the requisites for allowance of a lost or destroyed will? A: No will shall be proved as a lost or destroyed will unless:

1. 2.

3.

Its execution and validity of the same must be established; It must have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. 6)

2. GROUNDS FOR DISALLOWING A WILL Q: What are the grounds for disallowance of will? A: 1.

If not executed and attested as required by law;

If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; If it was executed under duress, influence of fear, or threats; If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or of some other person for his benefit; or 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. (Sec. 9, Rule 76)

Q: What is the Substantial Compliance Rule? A: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and farud is obviated, said will should be admitted to probate (Art. 809, New Civil Code). 3. REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT Q: What is reprobate? A: It is a special proceeding to establish the validity of a will proved in a foreign country. Q: What are the requisites before a will proven outside the Philippines be allowed here? A: 1. 2. 3.

4.

5.

6.

7.

The testator was domiciled in a foreign country; The will has been admitted to probate in such country; The foreign court is, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; Proof of compliance with the law on probate procedure in said foreign country; The legal requirements in said foreign country for the valid execution of the will have been complied with; Filing a petition in the Philippines with copy of the will and of its decree of allowance; and Notice and hearing. (PCIB v. Escolin, G.R. No. 76714, June 2, 1994)

Note: Under the doctrine of processual presumption, there must be evidence to prove the existence of foreign law, otherwise the court should presume that the law of the foreign country is the same as Philippine laws.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

175

UST GOLDEN NOTES 2011 Q: What are the effects of probate?

2. 3.

A: 1.

2.

3.

The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. 3, Rule 77); Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines (Sec. 4, Rule 77); and Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will, may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. 4, Rule 77).

Q: What authority is issued to the person who administers the estate? A: 1.

2.

3. E.

LETTERS TESTAMENTARY AND OF ADMINISTRATION

1. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED Q: Who can administer the estate? A: 1.

2.

3.

Executor – named by the testator in his will for the administration of his property after his death; Administrator – appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate; or Administrator with a will annexed – appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.

Q: State the order of preference in granting letters of administration. (to whom letters are granted) A: If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give the bond, or a person dies intestate, administration shall be granted to: 1.

2.

A: Any competent person may serve as executor or administrator. There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond. (Sec. 4, Rule 78)

Q: Who are incompetent to serve as executor or administrator?

Letters testamentary – authority issued to an executor named in the will to administer the estate; Letters of administration – authority issued by the court to a competent person to administer the estate of the deceased who died intestate; or Letters of administration with a will annexed – authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent. 2. ORDER OF PREFERENCE

Q: Who may serve as executor or administrator?

Note: If the named executor does not qualify, then an administrator may be appointed. (Sec. 6, Rule 78)

Non-resident of the Philippines; and Those who, in the opinion of the court, are unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or conviction of an offense involving moral turpitude (Sec. 1, Rule 78).

3.

The 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 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 Such other person as the court may select if there is no such creditor competent and willing to serve. (Sec. 6)

NOTE: Order of preference may be disregarded for a valid cause.

A: 1.

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Minor; REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. CA, G.R. No. 26751, Jan. 31, 1969).

Q: What is the rationale behind the order of preference in appointing an administrator? A: The underlying assumption behind this rule is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990). Q: When may co-administrators be appointed? A: 1.

2.

3.

4.

5.

To have the benefit of their judgment and perhaps at all times to have different interests represented; Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased; Where the estate is large or, from any cause, an intricate and perplexing one to settle; To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate; or When a person entitled to the administration of an estate desires to have another competent person associated with him in the office. (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992)

1. 2.

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).

Q: Is the order of Appointment of Regular Administrator final? A: No. The order of appointment of a regular administrator is appealable. Where no notice is required by Sec. 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person; the proceeding for the settelement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law. (Herrera, Vol. III-A, p. 94, 2005 ed.) 4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS Q: What are the rights of the executor or administrator of the deceased partner’s estate? A: 1.

3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION

2.

Q: Who may oppose the issuance of letters testamentary or administration?

3.

A: Any person interested in the will may file a written opposition. Note: He may attach thereto a petition for letters of administration and pray that letters be issued to himself, or to any competent person named in the opposition (Sec. 1, Rule 79).

Q: What are the grounds for opposing a petition for administration? A: Any interested person may by filing a written opposition, contest the petition on the ground of the:

Incompetency of the person for whom letters are prayed therein; or Contestant's own right to the administration (Sec. 4, Rule 79).

He shall at all times have access to, and may examine and take copies of books and papers relating to the partnership; He can make invoices of the property belonging to the partnership, and the surviving partner or partners on request; and The books, papers, and property in the partnership’s hands or control shall be exhibited to such executor or administrator. (Sec. 1, Rule 84)

Note: To exercise these rights, the executor or administrator must file his application with the probate court which must grant the same.

Q: What should be done by the executor or administrator to freely exercise his rights and duties? A: He shall submit a written application to the court having jurisdiction of the estate. (Sec. 1, Rule 84)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

177

UST GOLDEN NOTES 2011 Q: What are the general administrator or an executor?

powers

of

an

6.

A:

7. 1.

2.

3.

4.

5.

To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner To examine and make invoices of the property belonging to the partnership in case of a deceased partner 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 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: i) For the payment of debts; and ii) For the payment of expenses of administration

Q: Is the right of an executor/administrator to the possession and management of property of the deceased absolute?

He cannot profit by the increase or decrease in the value of the property under administration; He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners. (Herrera, Vol. IIIA, pp. 116-117, 2005 ed.)

5. APPOINTMENT OF SPECIAL ADMINISTRATOR REGULAR ADMINISTRATOR Order of Appointment may be the subject of an appeal One of the obligations is to pay the debts of the estate Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed

SPECIAL ADMINISTRATOR Order of Appointment is interlocutory and hence not appealable Cannot pay the debts of the estate Appointed when there is delay in granting letters testamentary or administration

Q: When are the grounds for the appointment of a special administrator? A:

A: No, it can only be exercised so long as it is necessary for the payment of debts and expenses of administration (Ruiz v. CA, G.R. No.118671, Jan. 29, 1996).

1.

Q: What are the restrictions on the powers of administrator or executor?

2.

When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will (Sec. 1, Rule 80); or When the executor or administrator is a claimant against the estate he represents (Sec. 6, Rule 86).

A: 1.

2. 3. 4.

He cannot acquire by purchase, even at public or judicial action, either in person or mediation of another, the property under administration; He cannot borrow money without authority from the court; He cannot speculate with funds under administration; He cannot lease the property under administration for more than 1 year; Note: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval. (Mananquil v. Villegas, A.M. No. 2430, Aug. 30, 1990)

5.

178

He cannot continue the business of the deceased unless authorized by the court; and

Note: Only one special administrator at a time may be appointed, since the appointment is merely temporary.

Q: Why is there a need for appointing a special administrator? A: The principal object is to preserve the estate until it can pass into the hands of persons fully authorized to administer it for the benefit of the creditors and heirs (De Guzman v. Guadiz, G.R. No. L-48585, Mar. 31, 1980). Q: What are the qualifications of a special administrator? A: These are not spelled out in the Rules of Court. Thus, the appointment should be within the sound discretion of the court. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS the appointment of a special administrator. (Herrera, Vol. III-A, p. 99, 2005 ed.) 2. Q: Does the order of preference in the appointment of regular administrators apply to the appointment of special administrators? A: No, but such order of preference may be followed by the judge in the exercise of sound discretion (Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960).

administrator is appointed with those powers. If a special administrator has been appointed, and thereafter a proceeding to contest a will before it is admitted to probate has been instituted, the court shall enter an order granting to the special administrator the additional powers, duties and obligations of an executor or administrator and requiring such additional bond as the court deems proper.

Q: Is the order appointing a special administrator appealable?

6. GROUNDS FOR REMOVAL OF ADMINISTRATOR

A: No, it is an interlocutory order. (Esler v. Tad-y, G.R. No. L-20902, Oct. 9, 1923)

Q: What are the grounds for the removal of an executor or administrator?

Q: What are the powers and duties of a special administrator?

A: 1.

A: 1.

2. 3. 4.

5.

Possess and take charge of the goods, chattels, rights, credits and estate of the deceased; Preserve the same; Commence and maintain suit for the estate; Sell only: a. Perishable property; and b. Other property ordered sold by the court; Pay debts only as may be ordered by the court. (Sec. 2, Rule 80)

Q: When do the powers of special administrator cease?

2.

3. 4. 5.

Neglect to render an account and settle the estate according to law; Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules; Absconds; Becomes insane; or Becomes incapable or unsuitable to discharge the trust (Sec. 2, Rule 82).

Note: These grounds are not exclusive. False misrepresentation by an administrator in securing his appointment is a ground for his removal (Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946).

Q: What are the other grounds for removal of an executor or administrator? A:

A: After the questions causing the delay are resolved and letters testamentary or administration are granted to executor or regular administrator. (Sec. 1) Q: When can 2 special administrators be appointed? A: 1.

If a special administrator is appointed pending determination of a contest of a will instituted before it is admitted to probate, or pending an appeal from an order appointing, suspending or removing an executor or administrator, the special administrator has the same powers, duties and obligations as an executor or administrator, and the letters of administration issued to the special administrator must recite that the special

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).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

179

UST GOLDEN NOTES 2011 Q: Are the grounds for removal of executor or administrator the same for special administrator?

Q: What is the duty of the court after granting letters testamentary or of administration?

A: No. The grounds for the removal of regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds upon its discretion.

A: The court shall issue a notice requiring all persons having money claims to file them in the office of the clerk of court. (Sec. 1, Rule 86)

Q: What is the rule on proceedings upon death, resignation or removal of an executor or administrator? A: When an executor or administrator dies, resigns, or is removed the remaning executor or administrator may administer the trust alone, unless the court gransts letters to someone act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person. Q: Does the discovery of a will automatically terminate the letters of administration? A: No, until the will has been proved and allowed pursuant to Section 1, Rule 82. (De Parreno v. Aranzanso, G.R. No. L- 27657, Aug. 30, 1982) Q: What are the powers of a new executor or administrator after the first one resigns or is removed?

1. TIME WHITIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS Q: What is the time within which claims shall be filed? A: It should not be less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month. (Sec. 2, Rule 86) The period prescribed in the notice to creditors is not exclusive; that 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 the cause and upon such terms as are equitable. (Quisumbing vs Guison, 76 Phil 730)

A: 1.

To collect and settle the estate not administered; 2. To prosecute or defend actions commenced by or against the former executor or administrator; and To recover execution on judgments in the name of former executor or administrator. (Sec. 4, Rule 82) F.

CLAIMS AGAINST THE ESTATE

Q: What is a claim? A: Claim refers to any debt or pecuniary demand against the decedent’s estate. Q: What is absolute claim? A: It is one which, if contested between living persons, would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain. Q: What is contingent claim? A: It is a conditional claim, which is subject to the happening of a future uncertain event. (Buan v. Laya, G.R. No. L-7840, Dec. 24, 1957)

180

Note: The range of period specified in Sec.2 of Rule 86 is intended to give the court the discretion to fix the period for the filing of the claims. The probate court is permitted by the rule to set the period as long as it is within the limitation provided.

2. STATUTE OF NON-CLAIMS Q: What is the statute of non-claims? A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.) Q: When should claims be filed? A: GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Such period once fixed by the court is mandatory. Otherwise, the claims are barred forever. Note: Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS claims he has against the decedent, and mutual claims may be set off against each other in such action. (Sec. 5, Rule 86)

estate may be commenced against the executor or administrator under Rule 87. Q: What if the effect of claims not filed?

XPN: Belated claims. Q: What is the rule on Belated Claims? A: Belated claims may be filed even beyond the period fixed by the court: 1.

2.

On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed not exceeding 1 month from the order allowing belated claims; or (Sec. 2 , Rule 86) 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.

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 non-claims and statute of limitations must concur in order for a creditor to collect.

Q: What claims against the estate of the decedent must be presented in the probate court in the testate or intestate proceedings? A: Only claims which survive such as: 1. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. Expenses for the last sickness of the decedent; or 4. Judgment for money against the decedent. (Sec. 5, Rule 86) Note: Action on contractual claims such as favorable judgment obtained by the plaintiff in an action for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment may be filed against the estate of the decedent. (Sec. 20, Rule 3)

Action which survives like an action to recover real or personal property or an interest therein from the

A: As expressly provided by the rule, all claims not presented within the time herein provided are barred. Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an order for all the creditors to file their respective claims against the estate. Alan filed a contingent claim for agent's commission due him in the event of the sale of certain parcels of land belonging to the estate and reimbursement for expenses incurred. The executrix of the estate moved for the dismissal of said money claim against the estate on the grounds that Alan failed to attach a certification against non-forum shopping. The trial court dismissed the case. Is the trial court correct? A: No. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, Alan’s contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping. (Sheker v. Estate of Alice O. Sheker, G.R. No.157912, Dec. 13, 2007) Q: Should taxes due and assessed after the death of the decedent be presented in the form of a claim? A: No. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Moreover, heirs even after distribution are liable for such taxes. (Vera v. Fernandez, G.R. No. L-31364, Mar. 30, 1979) 3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE Q: What should be the action of the executor or administrator if he has a claim against the estate? A: He shall give notice to the court in writing and the court shall thereafter appoint a special administrator (Sec. 8, Rule 86).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the procedure in filing claims? A:

Q: Jericho loaned P5 Million from Carina. Said loan was secured by a real estate mortgage over a parcel of land owned by Jericho. Thereafter, Jericho died without satisfying the loan secured by the said mortgage. What are the remedies available to Carina to enforce her mortgage credit? A:

1. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; 2. Foreclose the mortgage judicially and prove any deficiency as an ordinary claim; 3. Rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without the right to claim for any deficiency (Sec. 7, Rule 86). Note: The above remedies are alternative.

182

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 4. PAYMENT OF DEBTS

5.

Q: Is execution the proper remedy to satisfy an approved claim?

6.

A: No, because: 1. 2.

Payment approving a claim does not create a lien upon property of the estate Special procedure is for the court to order the sale to satisfy the claim

Q: How shall the proceeds from sale of personal property be used? A: 1.

Note: A writ of execution is not the proper procedure to satisfy debts. The court must order the sale or mortgage of the properties of decedent, the proceeds of which will satisfy the debts and expenses.

Q: How should the debts of the estate be paid? A: GR: The payment of the debts of the estate must be taken from the following order: 1.

2. 3.

Portion or property designated in the will – The debts of the testator, expenses of administration, or family expenses, shall be paid according to the provisions of the will. If such are insufficient, the properties not disposed of by will, if any, shall be appropriated for that purpose. Personal property; Real property. (Sec. 2, Rule 88) Note: If there is still a deficiency, it shall be met by contributions of devisees, legatees, or heirs who have entered into possession of portions of the estate before the debts and expenses have been settled and paid (Secs. 2, 3, and 6, Rule 88).

XPNS: On application by executor or administrator, with written notice to persons interested, and after hearing, real properties can be charged first even though the personal properties are not exhausted when: 1.

2.

3.

4.

The personal property is not sufficient to pay the debts, expenses of administration and legacies (Sec. 3, Rule 88); The sale of such personal property would be detrimental to the participants of the estate (Sec. 3, Rule 88); Sale of personal property may injure the business or other interests of those interested of the estate (Sec. 2, Rule 89); The testator has not made sufficient provision for payment of such debts, expenses or legacies (Sec. 2, Rule 89);

The decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary (Sec. 8, Rule 89); The decedent during his lifetime held real property in trust for another person (Sec. 9, Rule 89).

2. 3.

To pay the debts and expenses of administration; To pay legacies; and To cover expenses for the preservation of the estate. (Sec. 1, Rule 89)

Q: How should contingent claims be paid? A: If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient estate to pay a portion equal to the dividend of the other creditors. (Sec. 4, Rule 88) Q: What must be satisfied before a contingent claim may be allowed by the court? A: 1.

2. 3.

Duly filed within the 2 year period allowed for the creditors to present claims; The claim is valid; and The claim became absolute. (Sec. 5, Rule 88)

Q: What is the consequence if the contingent claim is not presented within the 2 year period after it becomes absolute? A: The assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same (Sec. 4, Rule 88). However, the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. Note: If heirs have taken possession of portions of the estate before the debts have been settled, they shall become liable to contribute for the payment of debts and expenses, and the court may, after hearing, settle

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 the amount of their several liabilities, and order how much and in what manner each person shall contribute (Sec. 6, Rule 88).

A: Those claims which can proceed independently of the settlement proceeding such as: 1.

Q: What is the order of payment if estate is insolvent or assets are insufficient? 2. 3.

A: The executor or administrator shall pay the debts according to the concurrence and preference of credits provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7, Rule 88). Q: How should the estate in the Philippines of an insolvent non-resident be disposed of? A: It shall be disposed of that his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits (Sec. 9, Rule 88). Q: When and how should claims proved outside the Philippines against insolvent resident’s estate be paid? A: Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance may be added to the list of claims proved against the decedent in the Philippines and the estate will be distributed equally among those creditors (Sec. 10, Rule 88). Note: The benefits in the above provision shall not 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 and the other creditors, according to their respective claims.

Q: When should the court authorize sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries? A: When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses, the court here may authorize the executor or administrator to sell, mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. 5, Rule 89). G.

ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS Q: What actions may be brought against the executor or administrator?

184

Actions to recover real or personal property, or an interest therein, from the estate; Enforcement of a lien; Actions to recover damages for an injury to person or property, real or personal. (Sec. 1, Rule 87)

Q: What action may be brought by the executor or administrator? A: Recovery or protection of the property or rights of the deceased, action for causes which survive. (Sec. 2, Rule 87) Note: When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done shall be maintained against him by an heir or devisee until there is an order of the court assigning the lands to such heir or devisee or until the time allowed for paying debts has expired. (Sec. 3, Rule 87)

Q: What is the concept of a superseades bond? A: It partakes the form of a security posted by the appealing party (who has lost the case in the lower court) to compensate the opposing party for the legal expenses in case it wins also in the higher (appellate) court. Q: What are the requisites in order that executor/administrator may commence and prosecute an action for the recovery of property, if the decedent fraudulently conveys property to defraud his creditors? A: 1. 2. 3.

Application of the creditors; Payment of cost and expenses; and Give security therefore to the executor or administrator. (Sec. 9, Rule 87)

2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF FRAUDULENTLY CONVEYED BY THE DECEASED Q: What are the requisites before a creditor may bring an action for recovery of property fraudulently conveyed by the deceased? A: 1.

There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration;

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 2.

3.

4.

5. 6. 7.

In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against his creditors; The subject of the attempted conveyance would be liable to attachment in his lifetime; The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time; Leave is granted by the court to the creditor to file the action; A bond is filed by the creditor; and The action by the creditor is in the name of the executor or administrator (Sec. 10).

Note: The creditor shall have a lien on the judgment recovered for costs and expenses. The last 3 requisites are unnecessary where the grantee is the executor or administrator himself, in which event, the action should be in the name of all the creditors. (Sec. 10; Herrera, Vol. III-A, p. 175, 2005 ed.)

H. DISTRIBUTION AND PARTITION 1. LIQUIDATION Q: What is liquidation? A: Liquidation is the determination of all assets of the estate and payment of all debts and expenses.

Q: Discuss the process for the distribution of the residue of the estate. A:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims.

Q: When is the order for distribution of residue made?

It is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. (Herrera, Remedial Law III-A, p 213)

A: GR: Order of distribution shall be made after payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax. (Sec. 1, Rule 90)

Q: May an heir of the deceased sell his undivided share during the pendency of the estate proceedings without the prior approval of the probate court?

XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before the payment of all debts, etc. (par. 2, Sec. 1, Rule 90)

A: Yes. An heir has the right to sell his undivided or ideal share of the estate, he being the co-owner with other heirs of the estate. Court approval is necessary only if specific property of the estate is sold. (Heirs of Pedro Escanlar v. CA, G.R. No. 119777, Oct. 23, 1997)

Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs. (Guilas v. Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)

Q: When should declaration of heirship be made? A: It is only after, and not before, the payment of all debts, funeral expenses, charges of administration, allowances to the widow, and inheritance tax shall have been effected that the court should make the declaration of heirs or of such person as are entitled by law to the residue. It should however be made clear that what the court is enjoined from doing so is the distribution of the residue of the estate before its obligations are first paid, but the court is not enjoined from making the declaration of heirs prior to the satisfaction of these obligations.

Q: Does the finality of the approval of the project of partition by itself alone terminate the probate proceeding? A: No. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated. (Estate of Ruiz v. CA, G.R. No. 118671, Jan. 29, 1996) 3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE Q: What is the remedy of an heir who is entitled to the residue but was not given his share? A: 1.

MOTION TO SET ASIDE THE DISTRIBUTION- If an heir appears after the court approved the project of partition, the heir must file a Motion to set aside the distribution with the court so that the court will not proceed with the distribution of the residue. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. If it is proven that the heir has a right, the court may order the revision of the project of partition for its adjustment.

2.

MOTION FOR THE RE- OPENING OF THE SETTLEMENT PROCEEDINGS-If the distribution has already been made, a motion for closure has already been granted, the heir must file a Motion for the re-opening of the settlement proceedings within the 30 day

Q: What should the executor or administrator do if all the claims are paid or settled? A: The executor or administrator shall prepare the project of partition reflecting the residue of the estate and how it is to be distributed. However, this is not mandatory. (Herrera, Vol. III-A, p. 213, 2005 ed.) 2. PROJECT OF PARTITION Q: What is project of partition? A: It is a document prepared by the executor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs. (Solivio v. CA, G.R. No. 83308, Feb. 12, 1990)

186

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS reglementary period, provided the order of closure has not yet become final and executory. 3.

CFI of Mindoro, 85 Phil. 228, a writ of execution is not the proper procedure allowed by the Rules of Court 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 or mortgage of real property of the deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees residing in the Philippines. And when the sale or mortgage is to be made, the regulations contained in Rule 89, Sec. 7 should be complied with.

ACCION REINVIDICATORIA- If the order of closure has already become final and executory, (Vda. de Lopez v. Lopez, G.R. No. L-28602, Sept. 29, 1970)

Q: When is title to property vested to the heirs? A: It is vested from finality of order of distribution. Q: Is the order that determines distributive share appealable? A: Yes. Otherwise, it becomes final. 4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION

XPNS: 1. To satisfy the distributive shares of the devisees, legatees and heirs in possession of the decedent’s assets; 2. To enforce payment of the expenses of partition; and 3. To satisfy the costs when a person is cited for examination in probate proceedings.

Q: What are the instances when the probate court may issue writ of execution? A: GR: A probate court cannot issue a writ of execution. In the case of Aldamiz vs. Judge of I. TRUSTEES

1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR EXECUTOR/ ADMINISTRATOR 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 Court that has jurisdiction may be MTC or RTC

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for the 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)

TRUSTEE Accounts must be UNDER OATH and filed ANNUALLY

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 a contractual trust, RTC has jurisdiction in the appointment of new trustee 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 Approved by the court to settle estate of the decedent

Order of sale has NO TIME LIMIT 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 administrator is 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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is a trust?

3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE

A: A legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property.

Q: What are the requisites for the removal or resignation of a trustee?

Q: Who is a trustee?

A: 1.

A: A trustee is one who is appointed to carry out the provision of the will or any written instrument executed by the trustor. 2. CONDITIONS OF THE BOND Q: What are the conditions of the bond? A: 1.

That the trustee will make and return to the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; Note: When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory if one has already been filed.

2.

3.

4.

5.

That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed; That he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; and That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the persons entitled thereto (Sec. 6, Rule 98).

Q: Is the trustee required to file a bond? A: GR: Yes. Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. XPN: If requested by the testator or by all persons beneficially interested in the trust, the trustee may be exempted from filing a bond. But the court may cancel such exemption anytime. (Sec. 5, Rule 98)

188

2. 3.

Petition filed by parties beneficially interested; Notice to trustee; and Hearing (Sec. 8, Rule 98).

4. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the grounds for removal or resignation of a trustee? A: 1. 2. 3. 4.

Removal appears essential in the interest of petitioners; Insanity; Incapability of discharging the trust; or Unsuitability (Sec. 8, Rule 98).

Note: A trustee may resign his trust if it appears to the court proper to allow such resignation (Sec. 8, Rule 98).

5. EXTENT OF AUTHORITY OF TRUSTEE Q: What is the extent of authority of a trustee? A: Rule 98, applies only to express trust, one which is created by a will or a written instrument. Q: When is there a testamentary trust? A: If a testator has omitted in will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will. After notice to all persons interested, the proper RTC may appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. Q: When is there a contractual trust? A: When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy after due notice to all persons interested, the proper RTC may appoint a new trustee to act alone or jointly with the others, as the case may be.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS Q: Can the possession of the trustee of the property ripen into ownership?

Q: Can the court convert escheat proceedings into settlement of the estate?

A: GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. The trustee’s possession is not adverse and therefore cannot ripen into title by prescription. XPN: Prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present: 1.

2.

3.

That the trustee has performed unequivocal acts amounting to an ouster of the cestui qui trust; That such positive acts of repudiation had been made known to the cestui qui trust; and That the evidence thereon should be clear and conclusive. (Ceniza vs. CA, 181 SCRA 552) J. ESCHEAT

Q: What is escheat? A: It is a French or Norman term meaning chance or accident. It is the reversion of property to the State in consequence of want of any individual competent to inherit. 1. WHEN TO FILE Q: What are the three instances of escheat? A: 1.

2.

3.

When a person dies intestate leaving no heir but leaving property in the Philippines (Sec. 1, Rule 91); Reversion proceedings where sale of property is made in violation of the Constitutional provision; and Dormant accounts for 10 years (Unclaimed Balance Act of Banking Laws).

2. REQUISITES FOR FILING OF PETITION

A: No, once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat, this jurisdiction cannot be converted into one for the distribution of the properties of the decedent. Note: For the distribution of the estate to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rules of Court. (Municipality of Magallon v. Bezore, G.R. No. L-14157, Oct. 26, 1960)

3. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM Q: What is the remedy of the respondent against the petition for escheat? A: When the petition does not state the facts which entitle the petitioner to the remedy prayed for, or even admitting them hypothetically, the respondent may file a MOTION TO DISMISS, in such case the Motion to dismiss plays the role of a demurrer to evidence (Herrera, Remedial Law III-A, p 227-228) K. GUARDIANSHIP Q: What is guardianship? A: It is a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003. While guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship. (Rule 92- 97)

Q: What is ancillary guardianship? A: It refers to the guardianship in a state other than that in which guardianship is originally granted. 1. GENERAL POWERS AND DUTIES OF GUARDIANS

Q: What are the requisites for filing a petition?

Q: To what extent does guardianship extend?

A:

A: Conflicts regarding ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding is concerned solely with the ward’s care and custody and proper administration of his properties (Villoria

1. 2. 3.

A person died intestate; He left no heirs or persons by law entitled to the same; and The deceased left properties in the Philippines. (Sec. 1, Rule 91)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 v. Administrator of Veteran Affairs, L-9620, June 1957) 2. Q: What are the general powers and duties of guardians? A: 1.

2. 3. 4.

5.

6.

7.

To have the care and custody of the person of the ward, and/or the management of his estate; Pay the debts of the ward; To settle accounts, collect debts, and appear in actions for the ward; Manage the estate of the ward frugally, and apply the proceeds to the maintenance of the ward; Render verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons; Render to court for its approval an accounting of the property for 1 year from his appointment and as often thereafter as may be required, and upon application of interested persons Consent to a partition of real or personal property owned by ward jointly or in common with others. (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC)

Q: What is the order of liability of the ward’s property? A: 1. Personal estate and income of real estate 2. Real estate Q: What are the requisites to authorize the guardian to join in the partition proceedings after hearing? A: 1. 2. 3.

Hearing Notice to relatives of the ward; and Careful investigation as to the necessity and propriety of the proposed action (Section 5)

2. CONDITIONS OF THE BOND OF THE GUARDIAN Q: What are the conditions of the bond of the guardian? A: 1.

190

To make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or

3.

4.

to the possession or knowledge of any other person for him; To faithfully execute the duties of his trust, manage and dispose of the estate according to the rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived there from, and of the management and disposition of the same, at the time designated by the rules and such other times as the court directs; and at the expiration of his trust, settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC).

Q: What is the purpose of the bond? A: It is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, Vol. III-A, p. 282, 2005 ed.) Note: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. (Guerrero v. Teran, G.R. No. L4898, Mar. 19, 1909)

Q: Does the requirement of posting a bond extend to parents who are the legal guardians of their minor children? Explain. A: GR: No, if the market value or annual income of the child is P 50,000 or below. XPN: If the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians (Sec. 16, A.M. No. 03-02-05SC).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 3. RULE ON GUARDIANSHIP OVER MINOR

A: 1. 2.

Q: Who may petition for appointment of guardian for resident?

3. 4. 5.

A: 1. Any relative; 2. Other person on behalf of the minor; 3. Minor himself is 14 years of age; or 4. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane minor who needs to be hospitalized. (Section 2, AM-03-02-05-SC) Q: Is court appointment necessary to enable the father and the mother to exercise joint legal guardianship over the person and property of minor? A: No. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Section 1, AM -03-02-05-SC) Q: What would the court do if an issue arises as to who has the better right or title to the properties conveyed in the guardianship proceeding? A: GR: The issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. XPN: When the ward’s right or title to the property is clear and undisputable, the guardianship court may issue an order directing its delivery or return.

6. 7.

Moral character; Physical, mental, and psychological condition; Financial status; Relationship of trust with the minor; Availability to exercise the powers and duties of a guardian for the full period of the guardianship; Lack of conflict of interest with the minor; and Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC).

Note: The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. (Sec.9, A.M. No. 03-02-05-SC).

Q: Who may be appointed as guardian of a minor? A: In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing, as far as practicable, the following order of preference: 1. Surviving grandparent and, in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. Oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified; 3. Actual custodian of the minor over 21 years of age, unless unfit or disqualified; 4. Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 6, A.M. No. 03-02-05-SC).

Q: What are the grounds for the appointment of a guardian over the person or property, or both, of a minor?

Q: What are the grounds for opposition to petition of guardianship of minors?

A:

A: 1. 2. 3.

4.

Death, continued absence, or incapacity of his parents; Suspension, deprivation or termination of parental authority; Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority; or When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05-SC).

Q: What are the factors to be considered for the appointment of guardian of minors?

1. 2.

Majority of the alleged minor; or Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M. No. 03-02-05-SC).

Q: How may a petition for guardianship of minors or incompetents be opposed? A: Any interested person may contest the petition by filing a written opposition and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 9).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 L. ADOPTION Q: What is adoption? A: It is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

A: No. Adoption cannot be had without the written consent of a natural parent who has allegedly abandoned them. Abandonment cannot be merely presumed, it must be duly proven. Moreover, there should be proof of emotional abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998). Q: Is publication of the hearing for adoption necessary for the adoption to be valid?

Q: What is the State policy on adoption? A: It is the policy of the State to ensure that every child remains under the care of his or her parent/s and be provided with love, care, understanding and security towards the full and harmonious development of his personality. Q: What is a Child Legally Available for Adoption? A: A Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or legal guardian. (Sec. 2(5), R.A. 9523). Q: What is the requirement in order that the child may be declared legally available for adoption? A: There must be a certification which shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature. The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. 8, Ibid.). Q: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them?

A: Indeed, publication of the scheduled hearing for the petition for adoption is necessary for the validity of a decree of adoption but not for the purpose merely of taking a deposition. In taking a deposition, no substantial rights are affected since depositions may or may not be presented or may even be objected to when formally offered as evidence at the trial of the main case later on. the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable intendment should be sustained to promote that objective. (Republic v. Elepano, G.R. No. 92542, Oct. 15, 1991). Note: The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack of jurisdiction both as to party and as to the subject matter. (Republic v. CA, G.R. No. 103695, Mar. 15, 1996).

Q: What is the effect of adoption created under the law of a foreign country? A: It is entitled to registration in the corresponding civil register of the Philippines. It is to be understood, however, that the effects of such adoption shall be governed by laws of the Philippines. (Marcaida v. Aglubat, G.R. No. L-24006, Nov. 25, 1967)

1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION

Jurisdiction

Who May adopt

192

DOMESTIC Family Court where adopter resides

1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for

INTER-COUNTRY Inter-Country Adoption Board (Petition may also be filed with Family Court where adoptee resides; FC to endorse petition to ICAB) A foreigner must meet the following requirements in order to be qualified to adopt in the Philippines under the Inter-Country Adoption Act: a) GR: at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent; 2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following: (i) A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; (ii) One who seeks to adopt the legitimate child of his Filipino spouse; (iii) One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. (3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

of application; XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent, he/she is not required to meet the above age requirement; b) If married, his/her spouse must jointly file for the adoption; c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; d) Not convicted of a crime involving moral turpitude; e) Eligible to adopt under his/her national law; f) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; h) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and i) Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

Husband and wife shall jointly adopt, except in the following cases: (i) Iif one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or (ii) If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or (iii) If the spouses are legally separated from each other.

Supervised Custody

Trial

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses. Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody)

Within the country of the adopter (Mandatory; all expenses borne by adopter)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

193

UST GOLDEN NOTES 2011 Petition adoption

for

Who may adopted

be

May include 1. Prayer for change of name 2. Rectification of simulated birth 3. Declaration that child is abandoned, dependent or neglected child or foundling 1. Any child legally declared available for adoption 2. Legitimate or illegitimate child of a spouse 3. Person of legal age

Supporting Documents

Publication

Where to application

file

3 successive weeks in a newspaper of general circulation in the province or city where the court is situated Family Court which has jurisdiction

2. DOMESTIC ADOPTION a. EFFECTS OF ADOPTION Q: What are the effects of adoption? A: 1.

2.

3.

All legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopter/s, except where the biological parent is the spouse of the adopter; The adoptee shall be considered the legitimate child of the adopter/s for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind; and In legal and intestate succession, the adopter/s and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his biological parent/s had left a will, the law on testamentary succession shall govern. (Secs. 16-18, R.A. 8552)

Note: The decree of adoption shall order the Civil Registrar where the adoption was registered to issue a certificate of birth which shall not bear that it is a new or amended certificate and shall state among others, the following: registry number, registration date, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable. [Sec. 16, 3(b)]

194

N/A

Child legally available for adoption

1. 2. 3. 4. 5. N/A

Income Tax Returns Police Clearance Character Reference Family Picture Birth Certificate of adopter

May be made through foreign placement agency which will then submit application to the ICAB

Q: What is the effect of the petition for adoption in relation to use of surnames? A: Pursuant to Art. 189 of the Family Code which states that the adopted child shall acquire the reciprocal rights and obligations arising from the relationship of a parent and child, including the right of the adopted to use the surname of the adopter, the adoptee has both the right and obligation to use the surname of the adopter, and that upon reaching the age of majority, he may file a petition for a change of surname, as the use by the adoptee of the surname of the adopter is more an incident rather than the object of adoption proceedings. (Republic v. CA, G.R. No. 97906, May 21, 1992) Note: This ruling may imply that what may be included in a petition for adoption is only the first or given name of the adoptee and not the surname, for he has the right and obligation, at least initially to use the surname of the adopter. (Agpalo, Handbook on Special Proceedings, p. 193, 2003 ed.) While the right of a natural parent to name the child is recognized, guaranteed and protected under the law, the so-called right of an adoptive parent to re-name an adopted child by virtue or as a consequence of adoption, even for the most noble intentions and moving supplications, is unheard of in law and consequently cannot be favorably considered. To repeat, the change of the surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. (Republic vs. Hernandez, G.R. No. 117209, Feb. 9, 1996).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS b. INSTANCES WHEN ADOPTION MAY BE RESCINDED Q: What are the grounds for rescission of adoption?

permanently residing abroad where the petition is filed, the supervised trial custody is taken, and the decree of adoption is issued outside of the Philippines. [Sec. 3(a)] a. WHEN ALLOWED

A: Upon the petition of the adoptee, with the assistance of the DSWD if a minor or though over 18 is incapacitated, on any of the following grounds committed by the adopter/s: 1. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment and failure to comply with parental obligations (Sec. 19, Ibid.). Note: Only the adoptee can rescind the decree of adoption. However, the adopter is not left without any remedy as he may deny to an adopted child his legitime and by will, may freely exclude him from having a share in the disposable portion of his estate. The new law had already abrogated or repealed the right of an adopter under the Civil and Family Codes to rescind a decree of adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003).

Q: When may inter-country adoption be allowed? A: It shall only be allowed when all the possibilities for domestic adoption of the child have been exhausted and that inter-country adoption is in the best interest of the child. (Sec. 27a) It is allowed when the adopter is an alien or a Filipino citizen permanently residing abroad. Moreover, his qualifications include: 1.

2. 3.

c. EFFECTS OF RESCISSION OF ADOPTION Q: What are the effects of rescission of adoption? A: 1.

2.

3.

4.

5.

The parental authority of the adoptee's biological parent/s, if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated; The reciprocal rights and obligations of the adopter/s and the adoptee to each other shall be extinguished; The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his or her original birth certificate; The successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; and The vested rights acquired prior to judicial rescission shall be respected (Sec. 23, Ibid.).

3. INTER-COUNTRY ADOPTION (R.A. 8043) Q: What is inter-country adoption? A: It refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen

4. 5. 6.

7.

8.

9.

At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; If married, his/her spouse must jointly file for adoption; Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws and has undergone the appropriate counseling from an accredited counselor in his/her country; Has not been convicted of a crime involving moral turpitude; Is eligible to adopt under his/her national law; Is in a position to provide proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; Agrees to uphold the basic rights of the child as embodied under the Philippine laws, the U.N. Convention of the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; Comes from another country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and Possesses all the qualifications and none of the disqualifications provided herein and other applicable laws. (Sec. 9, R.A. 8043).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

195

UST GOLDEN NOTES 2011 b. FUNCTIONS OF THE RTC Q: What is the function of the RTC in inter-country adoption?

of liberty must be actual and effective, not merely nominal or moral. (Ilusorio v. Bildner, G.R. Nos.13578990, May 16, 2000)

Q: What is the nature of the petition? A: The Court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the ICAB for appropriate action. (Sec. 32, Rule on Adoption). The application for adoption shall be filed with the RTC having jurisdiction over the child, or the InterCountry Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.

A: 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 is a proceeding in rem. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981) Note: In habeas corpus cases, the judgment in favor of the applicant cannot contain a provision for damages.

c. “BEST INTEREST OF THE MINOR” STANDARD Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. (Sec. 14)

1. CONTENTS OF THE PETITION Q: What should a verified petition for a writ of habeas corpus contain? A: 1.

2.

M. WRIT OF HABEAS CORPUS Q: What is writ of habeas corpus? A: It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day and the cause of his caption and detention to do, submit to and receive whatsoever, the court or judge awarding the writ shall consider in that behalf.

3. 4.

Note: It is regarded as “palladium of liberty”, a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge.

That the person in whose behalf the application is made is imprisoned or restrained of his liberty; 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; The place where he is so imprisoned or restrained, if known; 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) 2. CONTENTS OF THE RETURN

Q: To what instances may habeas corpus extend?

Q: What are the contents of the return?

A:

A: When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:

1.

2.

Cases of illegal confinement or detention by which a person is deprived of his liberty; and Cases by which the rightful custody of the person is withheld from the person entitled thereto. (Sec. 1, Rule 102)

1. Note: To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint

196

2.

Whether he has or has not the party in his custody or power, or under restraint; If he has the party in his custody or power, or under restraint, the authority

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS

3.

4.

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; If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; 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. (Sec. 10, Rule 102)

3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION Q: What is the difference between a preliminary citation and a peremptory writ? A: 1.

2.

Preliminary citation is issued when a government officer has the person in his custody, the illegality of which is not patent, to show cause why the writ of habeas corpus should issue. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. (Lee Yick Hon v. Collector of Customs, G.R. No. 16779, Mar. 30, 1921). 4. WHEN NOT PROPER/APPLICABLE

Q: When is habeas corpus not applicable? A: 1. 2.

3.

4.

5.

When detained under a lawful cause. In case of invasion or rebellion or when public safety requires it, under Art. III, Sec. 15, 1987 Constitution. When in case of invasion or rebellion or when public safety requires it, for a period not exceeding 60 days, under Art. 7, Sec. 18, 1987 Constitution. If the jurisdiction of the court to try the person detained appears after the writ is allowed. (Sec. 4, Rule 102). If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the

process, render the judgment, or make the order. (Sec. 4, Rule 102). 6. If the person is charged or convicted of an offense in the Philippines. (Sec. 4, Rule 102). 7. If the person is suffering imprisonment under lawful judgment. (Sec. 4, Rule 102). 8. In case of three-day retention of a suspect for three days without charge, pursuant to Sec. 18 of the Human Security Act. 9. When person is serving final sentence imposed by court. 10. For asserting or vindicating a denial of right to bail. 11. For correcting errors in appreciation of facts or of law. Note: Issuance of a writ of habeas corpus may not lie in order to revive a settled issue of the validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of the existence of a tenancy relationship between the parties arising from their arrest for having assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996). Loss of the records of the case after petitioner, by his own admission, was already convicted by the trial court of the offense charged will bar the issuance of a writ of habeas corpus. The loss must have occurred prior to the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb. 15, 2000). It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. That is error. If the Accused was illegally detained because he was arrested without a preliminary examination, what should have been done was to set aside the warrant of arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal responsibility. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981). In case of an illegal arrest, the petition for a writ of habeas corpus will still not prosper if the detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of an order denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995). Habeas Corpus may be had to give retroactive effect to a previous ruling of the Supreme Court favorable to the accused when the accused has already served the full term for a crime which the Court has declared nonexistent. (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it will not lie if the penalty of imprisonment imposed by the court is longer than that allowed by law. Such error of judgment may be corrected by appeal or by the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

197

UST GOLDEN NOTES 2011 President. (Pomeroy v. Director of Prisons, G.R. No. L14284, Feb. 24, 1960). The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports. (Tung Chin Hui v. Rodriguez, G.R. No. 141938, April 2, 2001).

Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal home? A: No. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. That is a matter beyond judicial authority and is best left to the man and woman’s free choice. (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

5. WHEN WRIT DISALLOWED/DISCHARGED Q: In what instances shall a writ be disallowed or discharged? A: 1.

2.

3.

In cases of supervening events such as issuance of a process and filing of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995); In cases of improper arrest or lack of preliminary investigation (Paredes v. Sandiganbayan, G.R. No. 89989, Jan. 28, 1991); and In cases of invalid arrest due to deportation cases cured by filing of deportation proceedings (Santos v. Commissioner of Immigration, G.R. No.L25694, Nov. 29, 1976).

Note: In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioner’s detention- from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been satisfied. (Bernarte v. CA, G.R. No. 107741, Nov. 18, 1996)

When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall order his discharge from confinement, but such discharge shall not be

198

effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be released. 6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (AM No. 03-04-04-SC) Q: Who may file a petition for custody of minor? A: Any person may file a verified petition for the rightful custody of a minor. The party against whom it may be filed shall be designated as the respondent. (Sec. 2, AM No. 03-04-04-SC). Q: Where should a petition for custody of minor be filed? A: Family courts in the province or city where the petitioner resides or where the minor may be found. (Sec. 3, AM No. 03-04-04-SC) Q: Whether Family Courts have concurrent jurisdiction with the Supreme Court and the Court of Appeals in petitions where the custody of minors is at issue? A: Yes. The Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. The provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 ― that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. (Thornton v. Thornton, G.R. No. 154598, Aug. 16, 2004). Q: What are the contents of the verified petition? A: 1. 2.

3.

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.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 4.

Such other matters which are relevant to the custody of the minor. Certificate of Non-Forum Shopping signed personally by the petitioner. (Sec. 4, AM No. 03-04-04-SC)

5.

2.

3. Q: When is a child not allowed to be separated from the mother?

4.

A: Under Article 213 (2) of the Family Code, no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

5. 6.

Q: When will the court take into consideration the choice of the child?

7. 8.

A: The child, who is over 7 years of age, may choose which parent he prefers to live with, unless the parent so chosen is unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. (Art. 213, Family Code) Note: If both parents are unfit, the court may designate other persons or an institution to take charge of the child, such as the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person.

Q: What should be considered in awarding the custody of minor? A: The court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. (Sec. 14, AM No. 03-0404-SC). Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. (Sec. 14, AM No. 03-04-04-SC) Q: What are the other factors that the court may consider in awarding custody? A: 1.

Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or

9.

emotional violence which endangers the safety and best interests of the minor; The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent; The health, safety and welfare of the minor; Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent; The nature and frequency of contact with both parents; Habitual use of alcohol, dangerous drugs or regulated substances; Marital misconduct; The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit. (Sec. 14, AM No. 03-04-04-SC)

Q: Would a decision rendering judgment on the issue of custody of a child in a nullity of marriage case constitute as res judicata on a pending habeas corpus case on the same matter? A: Yes. By filing the case for declaration of nullity of marriage petitioner automatically submitted the issue of the custody of the child as an incident thereof. Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. (Yu v. Yu, G.R. No. 164915, March 10, 2006). Q: What are the stages in the pre-trial? A: 1. 2.

First stage – the parties may agree on the custody of the minor. Second stage – the trial court will direct the parties to secure the services of a mediator if the parties do not agree on the custody of the minor. (Sec. 12, AM No. 03-04-04-SC)

Note: If the second stage does not produce an amicable settlement, the court will proceed with the pre-trial conference. Pre-trial is mandatory. (Sec. 12, AM No. 03-04-04-SC)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the order of preference in awarding provisional custody? A: As far as practicable, the order of preference shall be observed: 1. Both parents jointly; 2. 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; 3. 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; 4. The eldest brother or sister over twentyone years of age, unless he or she is unfit or disqualified; 5. The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or 6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. Q: May the court award temporary visitation rights in the provisional custody order? A: Yes, the court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified. Q: What should the court award after the hearing? A: 1. 2.

3.

Care, custody and control of each child as will be for its best interest. Court may order either or both parents to support or help support the child, irrespective of who may be its custodian. The fact that the father has recognized the child may be a ground for ordering him to give support, but not for giving him custody of the child. Court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable. (Sec. 18, AM No. 03-04-04-SC)

Q: May the court award the custody of the minors based merely on psychiatric report and agreement of the parties?

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A: No, the court should conduct thorough trial on all matters relevant to the welfare and interests of the child. (Laxamana v. Laxamana, G.R. No. 144763, Sept. 3, 2002) Q: Can the minor child be brought out of the country without leave from court while the petition is pending? A: 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. (Sec. 16, AM No. 03-04-04SC) N. WRIT OF AMPARO (AM No. 07-9-12-SC) Q: What is writ of amparo? A: It 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. (Sec. 1) Note: The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Deliberations of the Committee on the Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20, 2008)

Q: What are extralegal killings? A: Killings committed without due process of law, legal safeguards or judicial proceedings. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These include the illegal taking of life regardless of the motive, summary and arbitrary executions, salvaging even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS Q: What are enforced disappearances? A: An arrest, detention or abduction of a person by a government official or organized groups or private individual acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) 1. COVERAGE Q: What is the scope of the Writ of amparo?

under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.”

A: It covers extralegal killings and enforced disappearances or threats thereof. It is 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.

A search warrant is a court order issued by a judge or magistrate judge that authorizes the law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. A writ of amparo is a form of constitutional relief.

The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.

4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file the petition. It may also be filed by any qualified person or entity in the following order:

2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA

1.

Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data.

2.

A: Refer to page 205. 3. DIFFERENCES BETWEEN WRIT OF AMPARO AND SEARCH WARRANT Q: What is the difference between a Writ of Amparo from a Search Warrant? A: In the October 7, 2008 decision of the Supreme Court in the case of The Secretary of National Defense vs. Manalo, the Court said that “the production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things

3.

Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 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 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. (Sec. 2).

5. CONTENTS OF RETURN Q: What is the content of the verified return? A: Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

3.

4.

5.

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; The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: a. to verify the identity of the aggrieved party; b. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; c. to identify witnesses and obtain statements from them concerning the death or disappearance; d. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. to identify and apprehend the person or persons involved in the death or disappearance; and f. to bring the suspected offenders before a competent court. Other matters relevant to the investigation, its resolution and the prosecution of the case.

Note: A general denial of the allegations in the petition shall not be allowed.

6. EFFECTS OF FAILURE TO FILE A RETURN Q: What happens when the respondent fails to file a return? A: The court, justice or judge shall proceed to hear the petition ex parte. (Sec. 9)

A: The omnibus waiver rules states that all defenses not raised in the return are deemed waived. (Sec. 10). 8. PROCEDURE FOR HEARING Q: What is the nature of the hearing? A: The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. (Sec. 12). Q: How long should the hearing last? A: The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. (Sec. 13) 9. INSTITUTION OF SEPARATE ACTION Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. It does not preclude the filing of separate criminal, civil or administrative actions. (Sec. 21) 10. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect if a prior criminal action has been filed? A: No petition for a writ of amparo shall be filed. The reliefs under the writ shall be available by motion in the criminal case. (Sec. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. 11. CONSOLIDATION Q: What happens if criminal action is filed subsequent to a petition for writ of amparo? A: The petition for the writ shall be consolidated with criminal action. (Sec. 23) Q: What happens if a criminal action and a separate civil action are filed subsequent to a petition for writ of amparo? A: The petition for writ of amparo shall be consolidated with the criminal action.

7. OMNIBUS WAIVER RULE Q: What is the Omnibus Waiver Rule?

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Note: After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT Q: What are interim reliefs available? A: 1. 2. 3. 4.

PETITIONER Temporary protection order; Inspection order; Production order; Witness protection order. (Sec. 14)

Temporary Protection Order

HOW INITIATED Upon motion or motu proprio

Inspection Order

Upon verified motion and after due hearing

Production Order

Upon verified motion and after due hearing

Witness Protection Order

Upon Motion or Motu Proprio

RESPONDENT 1. 2.

Inspection order; Production order. (Sec. 15)

THE COURT SHALL Order the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. 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. 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. refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

13. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO

regularly performed to evade responsibility or liability.

Q: What is the quantum of evidence required in a petition for a writ of amparo?

Note: No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of the right sought to be protected. A threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas v. Napico Homeowners Association, G.R. No. 182795, June 5, 2008).

A: The parties shall establish their claims by substantial evidence. (Sec. 17) The respondent who is a private individual or entity must prove that ordinary diligence as required by the applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been

Q: Raymond and Reynaldo Manalo escaped from captivity and surfaced of the armed forces. But while the two admit that they are no longer in

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 detention and are physically free, they assert, that they are not free in every sense of the word as their movements continue to be restricted for fear that the people they have named in their judicial affidavits and testified against are still at large and have not held accountable. The Manalo brothers claim that they are under the threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person. They filed a petition for writ of amparo. Should the court granted the petition? A: Yes, the Manalo brothers’ right to security as freedom from threat is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. In blatant violation of guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)

property, and may be ordered destroyed by the court. 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT OF AMPARO Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: 1.

2.

O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC) 1. SCOPE OF WRIT Q: What is the scope of the writ? A: The writ covers instances wherein a person’s 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. 2. AVAILABILITY OF WRIT

5. CONTENTS OF PETITION Q: What are the contents of the verified petition? A: 1. 2.

3.

Q: What is writ of habeas data? 4. A: It 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. It is a procedure designed to safeguard individual freedom from abuse in the information age. (Sec. 1) Information or data written, tends to threaten violation of constitutional right to life, liberty or

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Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or In default thereof, any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. (Sec. 2)

5.

6.

The personal circumstances of the petitioner and the respondent 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 The actions and recourses taken by the petitioner to secure the data or information 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 The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of. Such other relevant reliefs as are just and equitable. (Sec. 6)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS 6. CONTENTS OF RETURN

A: 1.

Q: What should the respondent allege in his verified return? A: The respondent, within 5 working days from the service of the writ, unless reasonably extended by the Court, shall allege: 1.

2.

3.

The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; b. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and c. The currency and accuracy of the data or information held; and Other allegations relevant to the resolution of the proceeding.

Note: A general denial of the allegations in the petition shall not be allowed.

2.

When a subsequent criminal action is filed, the Petition for the writ of Habeas Data shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action.

Note: After consolidation, the procedure under the Rule shall continue to govern the disposition of the reliefs in the petition. (Sec. 21)

9. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect of an institution of a criminal action? A: No separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. (Sec. 22). 10. INSTITUTION OF SEPARATE ACTION Q: Does the filing of a petition for the writ of habeas data prohibit the filing of separate criminal, civil or administrative actions?

7. INSTANCES WHEN PETITION BE HEARD IN CHAMBERS

A: The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. (Sec. 20).

Q: What are the instances when a petition for a writ of habeas data may be heard in chambers?

11. QUANTUM OF PROOF IN APPLICATION FOR WRIT OF HABEAS DATA

A: It may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or State secrets, or when the data or security and that it cannot be divulged to the public due to its nature or privileged character. (Sec. 12)

Q: What is the quantum of evidence required in a petition for a writ of habeas data?

8. CONSOLIDATION Q: What happens when a criminal and/or civil action is filed after the filing of the petition for writ of habeas data?

A: The court shall render judgment within (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. (Sec. 16.).

Q: What are the differences between the writs? A: HABEAS CORPUS You have the body

AMPARO To protect

HABEAS DATA Literal interpretation You have the data

KALIKASAN It is a Filipino word which means “nature” in English

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Rule 102

A.M. No. 07-9-12-SC

Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

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.

Governing rule A.M. No. 08-1-16-SC Description 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. 09-6-8-SC Special remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental 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.

Coverage Involves the right to liberty of and rightful custody by the aggrieved party.

Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances.

Involves the right to privacy in life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances.

Constitutional right to a balanced and healthful ecology.

Rights violated There is an actual violation of the aggrieved party’s right.

There is an actual or threatened violation of the aggrieved party’s right.

RTC or any judge thereof, CA or any member thereof in instances authorized by law; or SC or any member thereof.

RTC of the place where the threat, act or omission was committed or any of its elements occurred; SB or any justice thereof; CA or any justice thereof; SC or any justice thereof.

Habeas Corpus

1.

Party for whose relief it is intended; or

2.

Any person on his behalf

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Amparo

There is an actual or threatened violation of the aggrieved party’s right. Where to file RTC 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; or with SC, CA or SB when the action concerns public data files or government offices.

There is an actual or threatened violation of one’s right to a healthful and balanced ecology involving environmental damage.

In SC or any stations of the CA.

Habeas Data Who may file a petition In the following order: 1. Any aggrieved party; 1. Any member of the 2. However, in cases of extralegal immediate family killings and enforced 2. Any ascendant, disappearances: descendant, or a. Any member of the collateral relative of immediate family the aggrieved party b. Any ascendant, th within the 4 civil descendant, or collateral degree of relative of the aggrieved consanguinity or party within the 4th civil affinity degree of consanguinity 3. Any concerned citizen, or affinity organization,

Kalikasan A natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS association institution

May or may not be an officer.

If granted by SC or CA: enforceable anywhere In the Philippines;

or

Respondent Public official or employee or a private individual or entity engaged Public official or employee in the gathering, collecting or storing or a private individual or of data or information regarding the entity. person, family, home and correspondence of the aggrieved party. Enforceability of the writ

Enforceable anywhere in the Philippines regardless of who issued the same

If granted by RTC: enforceable only within the judicial district

Public official or employee, private individual or entity.

Enforceable anywhere in the Philippines

Docket fees Payment is required Note: Rule on indigent petitioner applies. Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody

Payment is required. Petitioner is exempted from payment

Note: Rule on indigent petitioner applies. Service of writ

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service

Petitioner is exempted from payment

Served upon the respondent personally; or substituted service.

Person who makes the return Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found

On the day specified in the writ

Habeas Corpus

If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by RTC: returnable before such court

Respondent

Respondent

Respondent

When to file a return The respondent shall file a verified Within 5 working days written return together with after service of the writ, supporting affidavits within 5 the respondent shall file a working days from service of the verified written return writ, which period may be together with supporting reasonably extended by the Court affidavits. for justifiable reasons. Amparo

Habeas Data Return If issued by RTC: returnable If issued by RTC: returnable before such court; before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred; If issued by SC or any of its justices: returnable before such court, or before SB,

If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored;

Within nonextendible period of 10 days after the service of writ.

Kalikasan

If issued by SC, returnable before such court or CA.

If issued by SC or any of its

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

justices: returnable before such court, or before SB, CA, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored General denial Not prohibited. Not allowed. Not allowed. Not allowed. Liability of the person to whom the writ is directed if he refuses to make a return Forfeit to the aggrieved party the sum of Imprisonment or fine for Imprisonment or fine for Indirect contempt. P1000, and may also be committing contempt. committing contempt. punished for contempt. Hearing The hearing including the preliminary conference shall Summary hearing shall be Summary hearing shall be Date and time of not extend beyond sixty (60) conducted not later than 7 conducted not later than 10 hearing is specified in days and shall be given the days from the date of working days from the date the writ. same priority as petitions for issuance of the writ. of issuance of the writ. the writs of habeas corpus, amparo and habeas data. Period of appeal Within 48 hours from notice of the judgment or final order appealed from.

5 working days from the date of notice of the adverse judgment.

Habeas Corpus

Amparo

5 working days from the date of notice of the judgment or final order.

Habeas Data Prohibited pleadings

1. 2.

None

Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration.

Motion to dismiss; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross - claim; 6. Third - party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

Kalikasan 1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or crossclaim; Third-party complaint; Reply; and Motion to declare respondent in default.

Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of CA and SB, is not vested with jurisdiction to issue writ of amparo.

P. CHANGE OF NAME 1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108 Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or Typographical Error).

208

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS A: Rule 103

R.A. 9048 Scope

Change of first name or surname.

Change of first name or nickname/ correction of clerical errors of entries in the Civil Registry.

Rule 108 Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries.

Nature

Judicial; hearing is necessary.

Verified petition. RTC of the province where the petitioner resides at least 3 months. CA under Rule 41

Filed by the person desiring to change his name.

Solicitor General/ Interested parties. Order for hearing shall be published once a week for 3 consecutive weeks. 1. Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; 3. Consequence of a change of status; 4. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 5. The change will avoid confusion; or 6. 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 should

Administrative; hearing is not necessary.

Judicial; hearing is necessary Summary if it involves clerical errors Adversarial if it involves substantial errors.

Initiated by Sworn affidavit. Verified petition. Where to file 1. Local Civil Registry office where the record RTC where the corresponding civil is kept; registry is located. 2. Consul general. Where to appeal , in case of adverse decision Civil Registrar General under Sec. 7 or CA CA under Rule 41 under Rule 43 Who may file Petition is filed by the person of legal age who must have a direct and personal interest in the correction: 1. Owner of the record; Any person interested in the act, 2. Owner’s spouse, children, parents, event, decree or order concerning brothers, sisters, grandparents, guardian; the civil status of persons. or 3. Anyone authorized by law or owner of the record. Who must be notified Interested parties/Solicitor General need not be notified. Publication Order for hearing in case of change of first name/nickname shall be published once a week for 2 consecutive weeks. Grounds

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 by that first name or nickname in the community: or 3. The change will avoid confusion.

Civil registrar as respondent; Solicitor General/ Interested parties. Order for hearing shall be published once a week for 3 consecutive weeks.

N/A

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

209

UST GOLDEN NOTES 2011 prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

1. Correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person; and 2. Change of a person's first name or nickname in his or her civil registry.

Entries subject to correction 1. Correction of clerical or typographical errors in the civil registry 2. change of first name or nickname in the civil registry

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Births; Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning; Legitimations; Adoptions; Acknowledgments of natural children; Naturalization; Election, loss or recovery of citizenship; Civil interdiction; Judicial determination of filiation; and Change of name. (Sec. 2)

NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]

2. GROUNDS FOR CHANGE OF NAME Q: What are the grounds for change of name under Rule 103? A:

nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. (Republic v. Bautista, 155 SCRA 1, Oct. 26, 1987).

Q. ABSENTEES 1. PURPOSE OF THE RULE

1. 2. 3. 4.

5. 6.

Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; Consequence of a change of status; A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; The change will avoid confusion; or 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 should prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Q: What is the purpose of this Rule? A: It is to appoint an administrator over the properties of the absentee. This is proper only where the absentee has properties to be administered. When a person disappears from his domicile his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. Note: If the absentee left no properties, such petition is not necessary. (Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986)

Note: Under Rule 108, change of name may either be summary or adversary in nature. If the correction sought to be made in the civil registrar is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or

210

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEEDINGS 2. WHO MAY FILE A PETITION; WHEN TO FILE Q: Who absence trustee? A: 1. 2. 3. 4.

may file a petition for declaration of and appointment of administrator or

Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; Those who have over the property of the absentee some right subordinated to the condition of his death. (Sec. 2, Rule 107)

Note: Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001).

Q: What are the requisites of adversarial proceedings? A: 1.

Q: When should a petition for declaration of absence and appointment of administrator or trustee be filed?

2.

A:

4. 1.

2.

3.

After 2 years: a. From his disappearance and without any news about the absentee; or b. of the last news about the absentee. After 5 years – If he left an administrator of his property. (Sec. 2, Rule 107)

R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Q: Who may file a petition for cancellation or correction of entries? A: Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the RTC of the province where the corresponding civil registry is located (Sec. 1). Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial, the proceedings are adversarial in nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986) Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. (Republic v. Valencia, Ibid.)

5.

Proper petition is filed where the Civil Registrar and all parties interested are impleaded; The order of hearing must be published once a week for three consecutive weeks; Notice must be given to the Civil Registrar and all parties affected thereby; The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and Full blown trial. (Republic v. Valencia, supra.)

1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 Q: What are the entries subject to cancellation or correction under Rule 108? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Births; Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning; Legitimations; Adoptions; Acknowledgments of natural children; Naturalization; Election, loss or recovery of citizenship; Civil interdiction; Judicial determination of filiation; and Change of name. (Sec. 2)

Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic, G.R. No. 8932, May 31, 1957)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

211

UST GOLDEN NOTES 2011 Q: Within what period may a petition for correction or cancellation of entries be filed? A: The law did not fix a period within which the petition for correction under Rule 108 in relation to Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry, and not from the date the birth certificate was registered in the civil registry. (Lee v. CA, supra.) Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celine’s husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment before the CA, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. Celine opposed saying that the publication of the court order was sufficient compliance with due process. Rule. A: The petition for annulment of judgment before the CA should be granted. Jurisdiction of the court over a petition for cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. In this case, publication of the order is insufficient because Jeanie, a directly concerned party, was not given reasonable notice, hence, denied due process. The lower court, therefore, did not acquire jurisdiction. (Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005). Alternative Answer: It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v.

212

Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar Question) Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from “Chinese" to "Filipino" because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to change the record of birth by changing the filiation from “legitimate” to “illegitimate” and petitioner’s citizenship from “Chinese” to “Filipino” does not involve a simple summary correction which could otherwise be done under the authority of R.A. 9048. Procedural requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. (2005 Bar Question) S. APPEALS IN SPECIAL PROCEEDINGS 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN Q: What are the orders or judgments from which appeal may be taken? A: An interested person may appeal when such order or judgment: 1. 2.

3.

4. 5.

Allows or disallows a will; Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; Settles the account of an executor, administrator, trustee or guardian; Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEEDINGS

6.

a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, except orders granting or denying a motion for new trial or for reconsideration (Sec. 1, Rule 109).

Note: A stranger having neither material nor direct interest in a testate or intestate estate has no right to appeal from any order issued therein. (Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928)

A: 1.

Rule 40 (Appeal from MTC to RTC) – By filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both;

2.

Rule 41 (Appeal from the RTC to CA in exercise of its original jurisdiction) – By ordinary appeal by filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both;

3.

Rule 42 (Petition for review from the RTC to the CA in exercise of its appellate jurisdiction) – By filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both;

4.

Rule 45 (Appeal by certiorari to the SC) – By filing of verified petition for review on certiorari and payment of fees which shall raise questions of law only XPN: Any party may raise questions of fact in their appeal in cases of writ of amparo, habeas data and kalikasan.

5.

Rule 65 (Petition for certiorari) – By filing of verified petition for certiorari on the ground that the court acted without or in excess of jurisdiction or with grave abuse of discretion.

2. WHEN TO APPEAL Q: When should the appeal in special proceedings be filed? A: Special Proceedings Habeas Corpus Writ of Amparo Writ of Habeas Data Writ of Kalikasan

PERIOD FOR APPEAL 30 days (Record on Appeal required) 48 hours from service of judgment 5 working days from date of notice of judgment 5 working days from date of notice of judgment 15 days from notice of judgment or denial of motion for reconsideration

Q: What are the orders that are not appealable? A: 1.

2.

3. 4.

Order directing the administrator to take action to recover an amount due to the estate. Order made in administration proceedings relating to the inclusion or exclusion of items of property in the inventory of executor or administrator. Order appointing a special administrator. Order granting or denying a motion for new trial or for reconsideration.

4. RULE ON ADVANCE DISTRIBUTION Q: When can an advance distribution be made despite a pending controversy in the settlement of an estate? A: Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules. (Sec. 2)

3. MODES OF APPEAL Q: What are the modes of appeal, how perfected and their grounds?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 CRIMINAL PROCEDURE

3.

A. GENERAL MATTERS 4. Q: What is criminal procedure? A: It is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense, and for their punishment, in case of conviction (Herrera, Vol. IV, p. 1, 2007 ed.). Q: Distinguish procedure.

criminal

law

from

criminal

A: Criminal Law Substantive It declares what acts are punishable

Criminal Procedure Remedial It provides how the act is to be punished It provides for the method by which a person accused of a crime is arrested, tried or punished.

It defines crimes, treats of their nature and provides for their punishment

1. DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION OVER PERSON OF THE ACCUSED

Determined by the nature of the offense and/ or penalty attached thereto and not what may be meted out after trial; Determined by the law in force at the time of the institution of the criminal action and not at the time of its commission. ONCE VESTED IT CANNOT BE WITHDRAWN BY: a. Subsequent valid amendment of the information (People v. Chipeco GR No. 1968, March 31, 1964) or; b. Subsequent statutory amendment of the rules of jurisdiction UNLESS the amendatory law expressly provides otherwise or is construed that it is intended to operate to actions pending before its amendment, in which case the court where the action is pending is ousted of jurisdiction and the pending action will have to be transferred to the court having jurisdiction by virtue of the amendatory law (Binay v. Sandiganbayan GR No. 120011, October 1, 1999)

2. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION

Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the accused.

Q: What is criminal jurisdiction?

A:

A: It is the authority to hear and try a particular offense and impose the punishment for it (People v. Mariano, GR. No. L-40527, June 30, 1976).

Jurisdiction Over the Subject Matter Derived from the law. It can never be acquired solely by consent of the accused. Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived.

Jurisdiction Over the Person of the Accused May be acquired by consent of the accused (by voluntary appearance) or by waiver of objections. If he fails to make his objection on time, he will be deemed to have waived it.

Q: What determines jurisdiction of the court in criminal cases? A: 1. 2.

214

The geographical limits of its territory; Determined by the allegations in the complaint or information not by the results of proof or by the trial’s court’s appreciation of the evidence presented;

Note: Jurisdiction is determined by the law in force at the time of the commencement of the action

Q: What are the requisites for the valid exercise of criminal jurisdiction? A: 1.

2.

Jurisdiction over the subject matter – the power to hear and determine cases of general class to which the proceeding in question belong. The offense, by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of. Jurisdiction over the territory – The offense must have been committed or any of its essential ingredients took place within the territorial jurisdiction of the court. It cannot be waived and where the place of the commission was not specifically charged, the place may be shown by evidence.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 3.

Jurisdiction over the person of the accused – The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court.

Note: GR: Questions of jurisdiction may be raised at any stage of the proceedings and for lack of it, a court can dismiss a case motupropio XPN: The party raising the question is guilty of estoppel or laches (Tijam v. Sibonghanoy, G.R. No. L-21450, Apr. 15, 1968)

3. JURISDICTION OF CRIMINAL COURTS Q: How is jurisdiction determined? A: It is determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented (Buaya v. Polo, G.R. No. 75097, Jan. 26, 1989). Q: What is the principle of adherence? A: It provides that once jurisdiction is vested in the court, it is retained up to the end of litigation (Dela Cruz v. Moya, G.R. No. 65192, Apr. 27, 1988).

A: It is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime. It must be prosecuted integrally and must not be divided into component offenses which may be made subject of multiple information brought in different courts (Cuyos v. Garcia, G.R. No. L-46934, Apr. 15, 1988). Q: Which court has jurisdiction over continuing crimes? A: Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g.estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts. Q: Which court has jurisdiction over crimes punishable by destierro? A: Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the Municipal Trial Court, considering that in the hierarchy of penalties under Art. 71 of the RPC, destierrofollowsarresto mayor which involves imprisonment (People v. Eduarte, G.R. No. 88232, Feb. 26, 1990).

Q: Is there an exception to the principle of adherence? A: Yes, when the subsequent statute expressly provides, or is construed that it shall have retroactive effect to pending case (Herrera, Vol. IV, p. 9, 2007 ed.). Q: If fine is the only penalty, how is jurisdiction determined? A: In cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court. The RTC has jurisdiction where the fine is more than 4,000 pesos including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed 6,000 pesos (SC Court Circular No. 09-94) except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction of the MTC. The MTC has jurisdiction where the fine is 4,000 pesos or less. Accessory penalties and civil liabilities are no longer determinative of criminal jurisdiction. Q: In complex crimes, how is the jurisdiction of a court determined?

4. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION Q: Will injunction lie to restrain criminal prosecution? A: GR: Writs of injunction or prohibition to restrain criminal prosecution are generally not available because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. XPNs: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority; 5. Where the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Where the court has no jurisdiction over the offense; 8. Where it is a case of persecution rather than prosecution; 9. Where the charges are manifestly false and motivated by lust for vengeance; 10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and 11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners (Domingo v. Sandiganbayan, G.R. No 129904, Mar. 16, 2002). B. PROSECUTION OF OFFENSES 1. CRIMINAL ACTIONS, HOW INSTITUTED Q: What is criminal action? A: It is one by which the State prosecutes a person for an act or omission punishable by law. Q: How is criminal action instituted? A: The institution of a criminal action depends upon whether the offense requires a preliminary investigation. Where a preliminary investigation is required, a criminal action is instituted by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. Where a preliminary investigation is not required, a criminal action is instituted either: a.

b.

Note: 1.

2.

By filing the complaint or information directly with the Municipal Trial Court of Municipal Circuit Trail Court; or By filing the complaint with the office of the prosecutor. (Section 1, Rule 110, Rules of Court)

For Metro Manila and other chartered cities, the complaint shall be filed with the prosecutor regardless of the imposable penalty (Section 1, Rule 110, Rules of Court) Cases falling within the jurisdiction of the RTC are always commenced by information filed by the prosecutor.

A: There is NO DIRECT FILING of an information or complaint with the RTC because its jurisdiction covers offenses which require preliminary investigation. There is likewise NO DIRECT FILING with the Metropolitan Trial Court because in Manila, including other chartered cities, as a rule, the complaint shall be filed with the office of the prosecutor, unless otherwise provided by their charters. In case of conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, prevails. Q: What is the effect of institution of the criminal action on the prescriptive period? A: GR: It interrupts the running of the period of prescription of the offense charged (Sec. 1). XPN: Prescriptive periods of violations of special laws and municipal ordinances governed by Act No. 3323 (An Act to Establish Periods of Prescription for Violations Penalized by Special Laws and Municipal Ordinances and to Provide When Prescription shall Begin to Run) shall only be interrupted by the filing of a complaint or information in court. The filing of a complaint with the prosecutor or the proper officer for purposes of conducting a preliminary investigation will not interrupt the prescriptive period (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992). Q: May the offended party go directly to court to file a criminal action? GR:No. Before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon chairman. The Lupon secretary must certify that no conciliation or settlement was reached, attested to by the Lupon chairman. The complaint may also be filed if the settlement is repudiated by the parties. XPNs: 1. 2.

3. 4.

Where the accused is under detention Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings Where actions are coupled with provisional remedies Where the action may be barred by the statute of limitations

Q: Can the complaint or information be directly filed in the Regional Trial Court or Metropolitan Trial Court or other chartered cities?

216

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 2.

Q: What is the rule regarding the prescriptive periods of cases falling under the authority of the Lupon? A: The prescriptive period shall be suspended from the time of the filing of complaint with the punong barangay which suspension shall not exceed 60 days. The prescriptive period shall resume upon receipt of the certificate of repudiation or certificate to file action [Sec. 410(c), LGC].

2. Seduction, abduction or acts of lasciviousnessprosecuted exclusively and successively by the following persons in this order: 1. 2. 3. 4.

2. WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO Q: What is the concept of an offense or crime that cannot be prosecuted de officio? A: These are crimes or offenses which cannot be prosecuted except on complaint filed by the offended party or if the offended party is a minor, by the parents, grandparents or the guardian. All other crimes can be prosecuted de officio. Note: These are also known as private crimes.

Q: Are all crimes initiated by a complaint or information filed by the prosecutor? A: GR: Yes. XPNs: Private crimes which may only be prosecuted by a complaint filed by the private offended party, i.e.: 1. Concubinage 2. Adultery 3. Seduction 4. Abduction 5. Defamation 6. Acts of lasciviousness Note: These are crimes which are by their nature cannot be prosecuted de officio Rape is now a crime against persons by virtue of RA 8353.

Q: Who can legally file a complaint for crimes that cannot be prosecuted de officio? A: 1.Adultery or concubinage- Only the offended spouse may file a complaint for adultery or concubinage(Sec. 5). Note: The offended spouse cannot institute a criminal action for adultery 1. Without including the guilty parties if both are alive; or

If the offended party has consented to the offense or pardoned the offenders (Sec. 5).

The offended party; Offended party’s parents; Offended party’s grandparents; or Offended party’s guardian (Sec. 5).

Note: Such crimes cannot be prosecuted if the offender has been expressly pardoned by any of the abovementioned parties (Sec. 5).

3. Defamation imputing to a person any of the foregoing crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness- only by the party or parties defamed (Article 360, last paragraph, Revised Penal Code) Q: Are there instances where the State may initiate the action for seduction, abduction or acts of lasciviousness in behalf of the offended party? A: Yes, when the offended party: 1. Dies or becomes incapacitated before a complaint is filed; or 2. Has no known parents, grandparents or guardian (Sec. 5; Rule 110). Q: Who may file a complaint on cases of unlawful acts in RA 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act)? A: The complaint may be filed by the following: 1. Offended party; 2. Parents or guardians; 3. Ascendant or collateral relative within the third degree of consanguinity; 4. Officer, social worker or representative of a licensed child-caring institution; 5. Officer or social worker of the Department of Social Welfare and Development; 6. Barangay chairman; or 7. At least three (3) concerned, responsible citizens where the violation occurred (Sec. 27, RA 7160) Q: May a minor file a complaint for seduction, abduction, or acts of lasciviousness? A: GR: Yes, the offended party, even if a minor, has the right to initiate the prosecution of such

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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of

his

parents,

a.

XPN: If the minor is: 1. Incompetent; or 2. Incapable of doing so (Sec. 5, Rule 110).

b.

Note: If the minor fails to file a complaint, his parents, grandparents or guardian may file the same. The right granted to the former shall be excusive and successive in the order herein provided (Sec.5Rule 110).

c.

Q: Can the father file a complaint on behalf of his daughter for concubinage? A: No. The rule allowing the parents, grandparents, and guardians to file a complaint on behalf of the minor applies only to the offenses of seduction, abduction, and acts of lasciviousness. A complaint for adultery or concubinage may be filed only by the offended spouse. Q: If the offended party in abduction, seduction, and acts of lasciviousness is of age, can her parents file the complaint for her? A: No. If the offended party is already of age, she has the exclusive right to file the complaint unless she becomes incapacitated. The parents, grandparents, and guardian only have exclusive, successive authority to file the case if the offended party is still a minor.

The offended minor, if with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead; The parents, grandparents or guardian of the offended minor, in that order, extend a valid pardon in said crimes without the conformity of the offended party, even if the latter is a minor; If the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon.

Note: The pardon refers to pardon before filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does not prohibit the continuance of the prosecution of the offense.

Q: In cases of seduction, abduction or acts of lasciviousness may a minor extend pardon? A: Yes, but the pardon to be effective as to prevent prosecution of the accused must be given by both parents and the offended party. Q: Does the subsequent marriage of the accused and offended party extinguish the criminal liability? A: GR: The subsequent marriage between the party and the accused, even after the filing of the complaint, extinguishes the criminal liability of the latter, together with that of the coprincipals, accomplices and accessories.

Q: If the offended party dies during the pendency of the case, is the criminal liability of the accused extinguished? A: No.

XPNs: Q: Distinguish pardon from consent. 1. A: Pardon

Consent

Refers to past acts

Refers to future acts

In order to absolve the accused from liability, it must be extended to both offenders

In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse

2.

3.

Q: Who can give pardon? A: 1.

2.

218

Concubinage and adultery – only the offended spouse, not otherwise incapacitated. Seduction, abduction and acts of lasciviousness:

Where the marriage was invalid or contracted in bad faith in order to escape criminal liability; In “private libel” or the libelous imputation of the commission of the crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness and in slander by deed; and In multiple rape, in so far as the other accused in the other acts of rape committed by them are concerned.

Q: Can the offended party intervene in the criminal action? A: GR: The offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE recovery of civil liability is instituted in the criminal action pursuant to Rule 111 (Sec. 16). However, if the civil action for damages is filed separately from the criminal action and is based upon an independent civil action under Articles 32, 33, 34 or 2176 of the Civil Code, the right to intervene is not lost because the subject of the suit does not arise from the crime. The civil action to recover civil liability arising from the offense charged is not the one separately filed (Philippine Rabbit v. People, 427 SCRA 456) XPN: Where: 1. From the nature of the crime and the law defining or punishing it, no civil liability arises in favor of the offended party, e.g. sedition, rebellion, treason (crimes against national security); 2. The offended party waived the right to civil indemnity; or 3. The offended party had already instituted separate action. Q: What is the effect of desistance made by the offended party in private crimes? A: It does not bar the People from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. Note: GR: Since it is the State who is the real offended party in a criminal case, it is the prosecutor or the Ombudsman as the case may be, or the Solicitor General in cases before the CA or SC, who has the personality and authority prosecute and file a petition in behalf of the State. XPN: An offended party in a criminal case has sufficient personality to file a special civil action for certiorari, even without the imprimatur of the State. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the said complainant. (Perez v. Hagonoy Rural Bank, Inc., G.R. No. 126210, Mar. 9, 2000)

Q: What is the effect of death by the offended party to the criminal action? A: Death of the complainant: 1.

Will not be sufficient justification for the dismissal of the information, if prior to the filing of a case in court, a complaint was already filed by the offended party with the prosecutor (People v. Ilarde, G.R. No. L-57288, Apr. 30, 1984)

2.

During the pendency of the case, will not extinguish the criminal liability of the accused whether total or partial (DonioTeves v. Vamenta, G.R. No. L-38308

3. CRIMINAL ACTIONS, WHEN ENJOINED Q: When may criminal actions be enjoined? A: Whenever a criminal case is prosecuted and the State is the offended party, the case must always be prosecuted under control and guidance of the State through the government prosecutors. Whenever there is acquittal or dismissal of the case and the private complainant intends to question such acquittal or dismissal, the same must likewise be undertaken by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may question such acquittal or dismissal or appeal therefrom only insofar as the civil aspect is concerned, in the name of the petitioner or appellant and not in the name of the People of the Philippines (Metropolitan Bank and Trust Co. vs. Veridiano II, 360 SCRA 359). Note:The rule that the Solicitor General is the lawyer of the People in appellate courts admits an exception, namely, that which is provided for in RA 8249, which states in part that “in all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO 1, 2, 14 and 14-A, issued in 1986.”

4. CONTROL OF PROSECUTION Q: Who prosecutes criminal actions? A: GR: The public prosecutor shall prosecute, direct and control all criminal actions commenced by a complaint or information. XPN: The private prosecutor (private counsel) may prosecute the case in the event and provided that: 1. The public prosecutor has heavy work schedule; or 2. There is lack of public prosecutors; 3. The private prosecutor must be authorized in writing by the Chief Prosecution Office or Regional State Prosecutor; and

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Such will be subject to the court’s approval.

3.

Note: The institution of a criminal action depends upon the sound discretion of the prosecutor. But once the case is already filed in court, the same can no longer be withdrawn or dismissed without the tribunal’s approval (Herrera, Vol. IV, p. 79, 2007 ed.). Should the prosecutor find it proper to conduct a reinvestigation of the case at such stage, the permission of the court must be secured. (Republic v. Judge Sunga, G.R. No. 38634, June 20, 1988).

4.

Q: Are private prosecutors allowed to intervene in the prosecution of the offenses? A: Yes, however such intervention may be allowed if the offended party: 1. Waives the civil action; 2. Reserves the right to institute it properly; or 3. Institutes the civil action prior to the criminal action. Q: How long will the authority of the private prosecutor last? A: The authority of the private prosecutor shall continue until the end of the trial unless the authority is revoked or withdrawn (Sec. 5). Q: What are the matters within the control and supervision of the prosecutor? A: 1. What case to file 2. Whom to prosecute 3. Manner of prosecution 4. Right to withdraw information before arraignment even without notice and hearing Q: What are the matters within the control of the Court after the case is filed? A: 1. 2. 3. 4. 5.

Suspension of arraignment Reinvestigation Prosecution by the fiscal Dismissal of the case Downgrading of offense or dropping of accused even before plea

Q: What are the limitations of control by the Court? A: 1. 2.

220

Prosecution is entitled to notice of hearing Court must await for petition for review

Prosecution’s stand to maintain prosecution should be respected by the court The court must make its own independent assessment of evidence in granting or dismissing motion to dismiss. Otherwise, the judgment is void.

Q: Who shall review the decisions of the prosecutor? A: 1.

2.

The Secretary of Justice who exercises supervision and control over his actions and who may sustain, modify or set aside his resolution on the matter; or In appropriate cases, by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction (Herrera, Vol. IV, p. 75, 2007 ed.).

Q: May a prosecutor be compelled by mandamus to file a complaint regarding a complaint filed which he previously dismissed for lack of merit after preliminary investigation? A: No. This is because the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice. 5. SUFFICIENCY OF COMPLAINT OR INFORMATION Q: Define complaint. A: Complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated (Sec. 3). Note: The complaint contemplated under Sec. 3 Rule 110 is different from the complaint filed with the Prosecutor’s office. It refers to the one filed in court for the commencement of the criminal prosecution.

Q: Define information. A: Information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court (Sec. 4, Rule 110). Q: Distinguish information from complaint. Information Accusation must be in writing. It requires no oath. This is because the

Complaint It is a sworn written statement.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE prosecutor filing the information is acting under oath of his office (Estudillo v. Baloma, 426 SCRA 83) Subscribed by the prosecutor (Sec. 4)

Note: In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls.

Subscribed by a. b. c.

The offended party; Any peace officer; Other public officer charged with the enforcement of the law violated (Sec. 3)

Note: However, both are filed in the name of the People of the Philippines against all persons who appear to be responsible for the offense involved (Sec. 2, Rule 110).

Q: Why should the complaint or information be in the name of the People of the Philippines? A: Criminal actions must be commenced in the name of the People because a crime is an outrage against the peace and security of the people at large, so must its vindication be in the name of the People. However, if the action is instituted in the name of the offended party or of a particular city, the defect is merely of form and may be cured at any stage of the trial. Q: What is the form of a valid complaint or information? A: The complaint or information shall be: 1. In writing; 2. In the name of the People of the Philippines; and 3. Against all persons responsible for the offense involved (Sec. 2). Q: When is a complaint or information sufficient? A: It is sufficient if it states the: 1. Name of the accused; 2. Designation of the offense given by the statue; 3. Acts or omissions complained of as constituting the offense; 4. Name of the offended party; 5. Approximate date of the commission of the offense; and 6. Place where the offense was committed (Sec. 6).

An Information not properly signed cannot be cured by silence, acquiescence or even by express consent. The non-inclusion of some of the names of the eyewitnesses in the information does not preclude the prosecution from presenting them during trial. (People v. Dela Cruz, G.R. No. 128362, Jan. 16,2001)

Q: What is the rule in determining the name of the accused? A: Section 7 of Rule 110 establishes the following rules in designating the name of the accused: 1.

2.

3.

The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name. A description of the accused under a fictitious name must be accompanied by a statement that his true name is unknown. If later his true name is disclosed by him of becomes known in some other manner, his true name shall be inserted in the complaint or information and in the records of the case.

Q: is the mistake in the name of the accused equivalent to a mistake in his identity? A: No. A mistake in the name of the accused is not equivalent, and does not necessarily amount to, a mistake in the identity of the accused especially when sufficient evidence is adduced to show that the accused us pointed to as one of the perpetrators of the crime (People v. Amodia GR No. 173791). Q: What is the rule regarding the name of the offended party? A: The complaint or information must state the name and surname of the persons against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name. 1.

In crimes against property, if the name of the offended party is unknown, the property must be described with such

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

3.

particularity as to properly identify the particular offense charged. If the true name of the offended party is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information in record. If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or may be identified, without need of averring that it is a juridical person (Sec. 12).

Q: Must the complaint or information state with particularity the date of the commission of the offense? A: GR: It is not required. It suffices that the allegation approximates or be as near the actual date when the offense was committed (Sec. 11). XPNs: 1.

2.

If the date of the commission of the offense constitutes an essential element of the offense (e.g. infanticide, abortion, bigamy) (Sec. 11). When the dates are essential to the defense of alibi (People v. Valdesancho, G.R. No. 137051-52, May 30, 2001).

Note: The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars under Sec. 10, Rule 116; the failure to move for specification or quashal of the information on any of the grounds provided for in the Rules deprives the accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. Besides, the exact date of the commission of the crime is not an essential element of the crime (People v. Elpedes, G.R. Nos. 137106-07, Jan. 31, 2001).

6. DESIGNATION OF OFFENSE Q: What is the rule with regard to the designation of the offense? A: In designating the offense, the following rules must be observed: 1. The designation of the offense requires, as a rule, that the name given to the offense by statute must be stated in the complaint or information. If the statute

222

2.

3.

gives no designation to the offense, then reference must instead be made to the section or subsection punishing it (Sec. 8) Included in the complete designation of the offense is an averment of the acts or omissions constituting the offense (Sec. 8) The present rule also provides for a mandatory requirement, that the complaint or information must specify the qualifying and aggravating circumstances of the offense (Sec. 8)

Q: Must the qualifying circumstances be stated?

and

aggravating

A: Yes, it is required by Sec. 8 of Rule 110 that the complaint or information, in designating the offense, shall specify the qualifying and aggravating circumstances. A statement of the qualifying and aggravating circumstances is considered as a part of the cause of accusation. It must be stated in an ordinary and concise language (Sec. 9) Note: The qualifying and aggravating circumstances must be specified in the information. They must not only be proven but they must also be alleged, otherwise, they should not be considered (Catiis v. CA, G.R. 153979, February 9, 2006).

Q: Do allegations prevail over designation of the offense in the information? A: Allegations prevail over designation of the offense in the information. It is not the designation of the offense in the complaint or information that is controlling (People vs. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine the nature of the crime (People vs. Magdowa, 73 Phil. 512). Q: May the accused be convicted of a crime more serious than that named in the title of the information? A: 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 vs. Court of Appeals, 265 SCRA 701). Note: Limitation on the rule that an accused may be convicted of a crime which is more serious than that named in the title so long as the facts alleged the more serious offense. An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves: 1. A change in the theory of the trial; 2. Requires of the defendant a different defense; or

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 3.

7. CAUSE OF ACCUSATION

Note: Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can be convicted of the offense proven.

Q: What is the purpose of designating the cause of accusation?

Q: What must be alleged if the crime is “committed in relation to his office?”

A:

A: Mere allegation in the information that the offense was committed by the accused public officer in relation to his office is not sufficient. The phrase is merely “a conclusion of law”, not a factual averment that would show close intimacy between the offense charged and the discharge of the accused’s official duties. What is controlling is the specific actual allegations in the information (Lacson v. Executive Secretary, G.R. No. 128006, Jan. 20, 1999).

1. 2.

3.

Surprises the accused in any way (U.S. vs. Panlilio, 28 Phil. 603)

To enable the court to pronounce proper judgment; To furnish the accused with such a description of the charge as to enable him to make a defense; As a protection against further prosecution for the same cause

Q: What is the rule with respect to the cause of accusation? A: In informing the accused of the cause of accusation against him, it is not necessary to employ the words used in the statute alleged to have been violated. It is sufficient for the complaint or information to use ordinary and concise language sufficient to enable a person of common understanding to know the following: 1. 2. 3.

The offense being charged The acts or omissions complained of as constituting the offense; and The qualifying and aggravating circumstances (Sec. 9, Rule 110)

Q: When is an offense deemed committed in relation to public office? A: An offense is deemed committed in relation to public office when the “office” is a constituent element of the offense. The test is whether the offense cannot exist without the office (Crisostomo v. Sandiganbayan, G.R. No. 152398, Apr. 14, 2005). Q: What is the rule regarding the allegation as to the place of the commission of the offense? A: GR: The complaint or information is sufficient if it appears from the allegation that the offense was committed or some of its essential ingredients occurred some place, within the territorial jurisdiction of the court.

Q: What is the rule regarding negative averments? A: GR: Where the statute alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitation or exceptions from its violation, the complaint or information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of right which the accused has to prove.

XPN: When the place of commission is an essential element of the offense, the place of the commission must be alleged with particularity (e.g. trespass to dwelling, destructive arson, robbery in an inhabited house) (Sec. 10, Rule 110). 8. DUPLICITY OF OFFENSES; EXCEPTION Q: What does duplicity of offenses means?

XPN: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violations are incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions (Herrera, Vol. IV, p. 130, 2007 ed.).

A: Duplicity of Offense in an information or complaint means the joinder of two or more SEPARATE and DISTINCT or DIFFERENT offenses in one and the same information or complaint. Q: What is the “duplicity rule”? A: GR: A complaint or information must charge only one offense.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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XPNs: 1. 2. 3. 4. 5.

Q: What constitutes formal amendment? Complex crimes; Special complex crimes; Continuous crimes or delicto continuado; Crimes susceptible of being committed in various modes; Crimes of which another offenses is an ingredient

Q: What is the remedy in case of duplicity of offense?

A: Where: 1. it neither affects nor alters the nature of the offense charged; or 2. the charge does not deprive the accused of a fair opportunity to present his defense; or 3. It does not involve a change in the basic theory of the prosecution. Q: When is there an amendment in substance?

A: Should there be duplicity of offense in the information unless a single punishment for various offenses is prescribed, the accused must move for the quashal of the same before arraignment (Sec. 3, Rule 117). Otherwise, he is deemed to have waived the objection and may be found guilty of as many offenses as those charged and proved during the trial (Sec. 3, Rule 120).

A: There is an amendment in substance where it covers matters involving the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. (Almeda v. Villaluz, GR No. L- 31665, August 6, 1975)

RATIO: The State should not heap upon the defendant two or more charges which might confuse him in his defense.

A: 1. BEFORE THE PLEA GR: any amendment formal or substantial, before the accused enters his plea may be done with leave of court XPN: any amendment before plea which downgrades the nature of the offense charged in or excludes any accused form the complaint or information can be made only: a. Upon motion of the prosecutor; b. With notice to the offended party; and c. With LEAVE of COURT

Q: Is Splitting of case allowed? A: NO. A defendant should not be harassed with various prosecution based upon the same act by splitting the same into various charges, all emanating from the same law violated when the prosecution could easily and well embody them in a single information (People v. Silva, 4 SCRA 95) Q: What is the Principle of Absorption? A: Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in the single crime of rebellion. The test is whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated (Enrile v. Salazar GR NO 92163, June 5, 1990) 9. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION Note: Section 14 applies only to original case and not to appealed case.

Q: What may be amended? A: Only valid information may be amended. An information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect (Herrera, Vol. IV, p. 162, 2007 ed.).

224

Q: What are the kinds of amendment?

2. AFTER THE PLEA- covers only formal amendments provided: a. Leave of court is obtained; b. Such amendment is not prejudicial to the rights of the accused. EXCEPT when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another arraignment of the accused under the amended information. Q: What steps should be taken by the prosecution so that amended information which downgrades the nature of the offense may be validly made? Why? A: The prosecution should file a motion for leave of court with notice to the offended party. This is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Q: What is the test in determining whether the right of the accused is prejudiced by the amendment? A: It is when the defense of the accused under the complaint or information as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended (People v. Montenegro G.R. No. 45772, Mar. 25, 1988). Q: Can the prosecutor amend the information which changes the nature of the crime after the arraignment? A: GR: The prosecutor can no longer amend the information after arraignment as it would prejudice the substantial rights of the accused. XPN: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact.

Amendment before the plea is entered can be effected without leave of court. An amendment as to form will not require another preliminary investigation and retaking of plea of the accused. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy.

1.

A: If it appears any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Sec. 14, Rule 110).

2.

3. Q: What are the limitations to the rule on substitution? A:

3.

No judgment has yet been rendered; The accused cannot be convicted of the offense charged or of any other offense necessarily included therein; and The accused would not be placed in double jeopardy (Herrera, Vol. IV, p. 176, 2007 ed.).

Q: Distinguish amendment from substitution A: Amendment May involve either formal or substantial changes

Substitution Involves substantial change from the original charge

Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge; hence the accused cannot claim double jeopardy.

VARIANCE BETWEEN INDICTMENT AND PROOF (Situations Contemplated)

Q: When is substitution proper?

1. 2.

It must be with leave of court as the original information has to be dismissed. Substitution of the information entails another preliminary investigation and plea to the new information.

When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of a new information charging the proper offense.

Note: The third situation set forth above is substitution of information under Section 14, Rule 110.

10. VENUE OF CRIMINAL ACTIONS Q: Where should a criminal action be instituted? A: GR: Subject to existing laws, criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or any of its essential ingredients occurred (Sec. 15, Rule 110).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 XPNs: 1. An offense was committed on a railroad train, in an aircraft, or in any other public or private vehicle in the course of trip – the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival; 2. Where the offense is committed on board a vessel on its voyage – the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law; 3. Felonies under Art. 2 of the RPC – shall be cognizable by the proper court where the criminal action was first filed (pars. b, c and d, Sec. 15); 4. Continuous or transitory crimes – such offenses may be tried by the court of any jurisdiction wherever the offender may be found, but the complainant should allege that the offense was committed within the jurisdiction of the court (Herrera, Vol. IV, p. 184, 2007 ed.). 5. Piracy – the venue of piracy, unlike all other crimes, has no territorial limits. It is triable anywhere; 6. Libel – the action may be instituted at the election of the offended or suing party in the municipality or city where: a. the libellous article is printed and first published; b. If one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense; c. If the offended party is a public official, where the latter holds office at the time of the commission of the offense. 7. B.P. 22 cases – the criminal action shall be filed at the place where the check was dishonored or issued. In case of crossed check, the place of the depositary or the collecting bank. 11. INTERVENTION OF OFFENDED PARTY Q: What is the rule on intervention of the offended party in the criminal action? A: GR: Offended party has the right to intervene by counsel in the prosecution of the criminal action,

226

where the civil action for the recovery of civil liability is instituted in the criminal action pursuant to Rule 111. XPNs: 1.

2.

3.

4.

Where from the nature of the crime and the law defining and punishing it, NO civil liability arises in favor of the offended party; and Where the offended party has waived his right to civil indemnity OR has expressly reserved his right to institute a civil action OR has already instituted said action. Where the offended party has expressly reserved his right to institute a separate civil action; OR Where the offended party has already instituted said action

Q: What is the remedy of the offended party in case of dismissal? A: Where the prosecutor sought the dismissal of the criminal action or refused to institute the corresponding action or to proceed with the prosecution of the case, the offended party may C. PROSECUTION OF CIVIL ACTION 1. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION Q: Does the institution of a criminal action include the civil action as well? A: GR: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense shall be deemed instituted with the criminal action (Section 1a, Rule 111) XPNs: When the offended party: 1. WAIVES the civil action; 2. RESERVES his right to institute a separate civil action; or 3. INSTITUTES A CIVIL ACTION PRIOR to the criminal action (Sec. 1, Rule 111). PURPOSE: To prevent double recovery (Yakult Philippines v. CA, GR No. 91856 October 5, 1990) Q: Whatcivil actions are not deemed impliedly instituted in the criminal action? A: Those which are:

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 1. 2.

3.

NOTE: 1.

2.

3.

Arising from breach of contract (Herrera, Vol. IV, p. 217, 2007 ed.); Independent civil actions or those based on Arts. 31, 32, and 33 of the New Civil Code; and Based on Art. 2176 of the New Civil Code or quasi-delict(Herrera, Vol. IV, p. 216, 2007 ed.).

The failure to reserve the right to file the enumerated actions does not amount to a waiver to institute a separate civil action (Herrera, Vol. IV, p. 217, 2007 ed.). The appearance of the private prosecutor (private counsel) does not amount to a waiver of the civil action (Herrera, Vol. IV, p. 226, 2007 ed.). They shall proceed independently of the criminal action and require only a preponderance of evidence (Secs. 1 and 3)

Q: When should the reservation to file a separate civil action be made? A: 1. 2.

Before the prosecution starts to present its evidence; and Under circumstances affording the offended party a reasonable opportunity to make such reservation (Sec. 1 Rule 111).

Q: Should the reservation to file a separate action be express? A: No, jurisprudence instructs that the reservation may not be necessarily express but may be implied, which may be inferred not only from the acts of the offended party but also from acts other than those of the latter (Herrera, Vol. IV, p. 228, 2007 ed.). Note: Failure of the court to pronounce judgment as to the civil liability amounts to the reservation of the right to a separate civil action (Herrera, Vol. IV, p. 228, 2007 ed.).

Q: What is the effect of reserving the right to file a separate civil action? A: The prescriptive period of the civil action that was reserved shall be tolled (Sec. 2 Rule 111). Q: What are the instances wherein the reservation to file a separate civil action shall not be allowed? A: 1.

Criminal action for violation of B.P. 22 [Sec. 1, Rule 111 (b)];

2.

3.

A claim arising from an offense which is cognizable by the Sandiganbayan(Herrera, Vol. IV, p. 231, 2007 ed.); and Tax cases.

Q: Can the offended party in a criminal case appeal the civil aspect despite the acquittal of the accused? A:In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (Section 2, Rule 120) Q: May the offended party compromise the civil aspect of a crime? A: Yes, provided it must be entered before or during the litigation, and not after final judgment 2. WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY Q: When may civil action proceed independently of the criminal action? A: The institution of an independent civil action based on Arts. 32 33, 34 and 2176 of the Civil Code against the offender may proceed independently of the criminal case at the same time without the suspension of either proceeding (Sec. 3 Rule 111). Note: It requires only a preponderance of evidence and the offended party is entitled only to the bigger award when the awards in the cases vary. Recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code may be prosecuted separately even without reservation (DMPI Employees Credit Cooperative v. Velez, G.R. No. 129282, Nov. 29, 2001).

Q: Is the consolidation of civil action and criminal action arising from the same offense allowed? A: Yes. Before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action (Sec. 2Rule 111). Note: A separate civil action for collection of sum of money cannot be consolidated with cases pending before the Sandiganbayan for the latter has no jurisdiction over collection cases (Herrera, Vol. IV, p. 231, 2007 ed.).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is the effect of the consolidation of the civil and criminal actions with regard to the evidence in each case? A: In cases where the consolidation is given due course, the evidence presented and admitted in the civil case shall be deemed automatically reproduced in the criminal action without prejudice to admission of additional evidence and right to cross examination (Sec. 2). 3. WHEN SEPARATE CIVIL ACTION IS SUSPENDED Q: When is a separate civil action suspended?

3.

4. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION Q: How does the death of the accused affect the civil aspect of the case? A: If the accused died: 1. After arraignment and during the pendency of the criminal action GR: The civil liability of the accused based on the crime is extinguished.

A: 1.

2.

XPNs: 1.

2. 3. 4.

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 (Sec. 2).; If the civil action is instituted before the 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.

In cases of independent civil actions based on Arts. 32, 33, 34 and 2176 of the Civil Code; In cases where the civil action presents a prejudicial question; and In cases where the civil action is consolidated with the criminal action; and Where the civil action is not one intended to enforce the civil liability arising from the offense.

Q: Does the extinction of the penal action carry with it the extinction of the civil action? A: GR: The extinction of the penal action does not extinguish the civil action. XPN: When there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability might arise did not exist (Sec. 2). Note: The civil action that is extinguished refers exclusively to civil liability arising from the crime and does not include civil actions: 1. 2.

228

Based on quasi-delict; Based on Arts. 32, 33 and 34 of the NCC (independent civil actions); or

Civil obligation not based on the criminal offense (Herrera, Vol. IV, p. 249, 2007 ed.).

XPN: a. Independent civil action based on Arts. 32 33, 34 and 2176 of the Civil Code; and b. Civil liability predicated on other sources of obligations, i.e. law, contract, and quasi-contract, which is subsequently instituted; 2.

Before arraignment – the offended party may file the civil action against the estate of the deceased (Sec. 4).

3.

Pending appeal a. Civil liability arising from the crime is extinguished b. Civil liability predicated from another source survives i.e. civil liability arising from law, contracts, quasicontract and quasi-delict.

Note: 1.

2.

In nos. 1 and 3(b), the civil action may be continued against the estate or legal representative of the accused after proper substitution, as the case may be (Sec. 4). Where the civil liability survives, it may be pursued by the filing of a separate civil action unless otherwise waived, reserved or instituted prior to the institution of the criminal action (Herrera, Vol. IV, p. 257, 2007 ed.).

Q: What is the effect of the death of the accused after final appeal? A: Pecuniary liabilities of the accused are not accused are not extinguished. Claims shall be filed against the estate of the accused (Rule 86). NOTE: However, the independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE legal representative if the accused after proper substitution, or against said estate, as the case may be.

same criminal action at any time before the prosecution rests.

5. PREJUDICIAL QUESTION

Q: Where should the petition for suspension by reason of prejudicial question be filed?

Q: What is a prejudicial question? A: A: Prejudicial question is one which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal Q: What are the elements of a prejudicial question?

1. 2.

Office of the prosecutor; or Court where the criminal action has been filed for trial at any time before the prosecution rests (Sec. 6).

Q: Give an example of a prejudicial question. A:

A: 1. 2.

3.

a.

The civil action must be instituted prior to the criminal action; The civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and The resolution of such issue determines whether or not the criminal action may proceed (Sec. 7).

Note: For the principle of prejudicial question to apply, it is essential that there be two cases involved, invariably a civil case and a criminal case. If the two cases are both civil or if they are both criminal, the principle does not apply. The law limits a prejudicial question to a previously instituted civil action not to a subsequent one.

Q: When may prejudicial question be raised? A: 1. The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case.

b.

Note: For the principle of prejudicial question to apply, it is essential that there be two cases involved invariably a civil case and a criminal case. If the two cases are both civil or if they are both criminal, the principle finds no application. The law limits a prejudicial question to a PREVIOUSLY INSTITUTED civil action not to a subsequent one.

Q: Give examples which are not considered prejudicial questions. A: 1.

2. The suspension of the criminal case due to a prejudicial question is only a procedural matter, and is subject to a waiver by virtue of prior acts of the accused. 3. There is no prejudicial question where one case is administrative and the other is civil. Note: A prejudicial question is based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.

2.

3.

Q: When do you plead a prejudicial question? A: When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the

A question of ownership in a pending civil case is a prejudicial question justifying the suspension of the criminal case for violation of the Anti-Squatting Law (Apa v. Fernandez, G.R. No. 112318, Mar. 20, 1995). Civil action involving title to property is prejudicial to criminal action for damages to said property (Herrera, Vol. IV, p. 265, 2007 ed.).

4.

Where the outcome of the civil case is not determinative of the guilt or innocence of the respondent in the criminal case (People v. Delizo, G.R. No. 141624, Aug. 17, 2004)e.g. award of damages in favor of the accused; A civil action instituted to resolve whether the designation of certain persons where in accordance with law is not a prejudicial question in a criminal case for violation of the anti-graft law (Tuanda v. Sandiganbayan, G.R. No. 110544, Oct. 17, 1995); or A civil action for replevin is not prejudicial to theft (Ramirez v. Jimenez, 1 CA rep. 143) (Herrera, Vol. IV, p. 270, 2007 ed.). An action for declaration of nullity of a second marriage is not a prejudicial question to the criminal prosecution of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 bigamy (Beltran v. People, G.R. No. 137567, June 26, 2000).

civil action is made (Roa v. Dela Cruz, G.R. No. L13134, Feb. 13, 1960).

Note: The plain reading of the of law (Art. 349, RPC) would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage (Herrera, Vol. IV, p. 269, 2007 ed.).

Note: In an appeal of a criminal case the appellate court may impose additional damages or increase or decrease the amount of damages upon the accusedappellant. HOWEVER, additional penalties CANNOT be imposed upon a co- accused who DID NOT APPEAL, BUT modifications of the judgment BENEFICIAL to him are considered in his favor.

6. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION Q: What are the rules regarding filing fees of civil action deemed instituted with the criminal action?

Actual damages GR: No filing fee is required.

A: The offender is still liable and the offended party has the right to prove and claim for them in the criminal case, unless a waiver or reservation of the civil action is made (Roa v. Dela Cruz, G.R. No. L13134, Feb. 13, 1960).

XPN: B.P. 22 cases, wherein the amount of the filing fees shall be equivalent to the amount of the check involved.

Q: May the accused file counterclaims, crossclaims or third party complaints in a criminal proceeding?

Liquidated, moral, nominal, temperate or exemplary damages – The filing fee shall be based on the amount alleged in the complaint or information (Sec. 1).

A: No. Counterclaims, cross claims, third party complaints are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof may be litigated in a separate civil action.

A: 1.

2.

Q: What is the effect of the failure to plead damages in the complaint or information?

Note: If the amount of the damages claimed is not specifically alleged in the complaint or information, but the court subsequently awards such, the filing fees based on the amount awarded shall constitute a first lien on the judgment (Sec. 1Rule 111).

Q: What is the extent of damages that may be awarded in civil liability arising from a crime?

Reasons: 1. The counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings; 2. The trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime.

A: 1. 2. 3. 4.

Actual damages e.g. loss of earning capacity; Moral damages; Exemplary damages (Herrera, Vol. IV, p. 223, 2007 ed.); Life expectancy (People v. Villanueva, G.R. No. 96469, Oct. 21, 1992).

Note: Attorney’s fees may be awarded if: 1. 2.

Exemplary damages is awarded; or Civil action is separately instituted from the criminal action (People v. Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995).

Q: What is the effect of the failure to plead damages in the complaint or information? A: The offender is still liable and the offended party has the right to prove and claim for them in the criminal case, unless a waiver or reservation of the

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D. PRELIMINARY INVESTIGATION Note: This rule has been partially amended by AM 058-26. The amendments took effect on October 3, 2005. The conduct of preliminary investigation has been removed from judges of the first level courts.

Q: What is the procedure for conducting preliminary investigation? A: Filing of the complaint accompanied by the affidavits and supporting documents

Within 10 days after the filing, the investigating officer shall either dismiss or issue a subpoena

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE

If a subpoena is issued, respondent shall submit a counter- affidavit and other supporting documents within 10 days from receipt thereof

From the filing of the complaint, the investigating officer has ten (10) days within which to decide on which of the following options to take: a.

Clarificatory hearing (optional). It shall be held within 10 days from the submission of counter affidavits or from the expiration of the period of their submission.

b.

Resolution of the investigating prosecutor (Section 4 and 5)

1.

Filing of the complaint A complaint shall be filed before the investigating officer. This complaint shall be accompanied by a. b. c.

The affidavits of the complainant; The affidavits of his witnesses; and Other supporting documents that would establish probable cause (Sec. 3(a) Rule 112).

Note: It shall contain the address of the respondent.

The affidavits that shall accompany the complaint shall be subscribed and sworn to before: a. b.

c.

Any prosecutor; Before any government official authorized to administer oaths; or In the absence or unavailability of the abovementioned, the affidavits may be subscribed and sworn to before a notary public.

Note: The officer or notary public before whom the affidavits were subscribed and sworn to must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits (Sec. 3(a)Rule 112).

2.

3.

To dismiss the complaint if he finds no ground to conduct the investigation; or To issue a subpoena in case he finds the need to continue with the investigation, in which case the subpoena shall be accompanied with the complaint and its supporting affidavits and documents (Sec. 3(b))

Filing of counter-affidavit The respondent who received the subpoena, the complaint, affidavits and other supporting documents, is not allowed to file a motion to dismiss. Instead, within 10 days from receipt of subpoena, he is required to submit his counter-affidavit, the affidavits of his witnesses and the supporting documents relied upon for his defense (Sec. 3(c)Rule 112) Note: The respondent is not allowed to file a motion to dismiss. Instead, he must file a counter-affidavit.

Despite the subpoena, if the respondent does not submit his counter-affidavit within the ten-day period granted him, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall apply in case the respondent cannot be subpoenaed (Sec. 3(d) Rule 112). GR: In preliminary investigation, a motion to dismiss is not an accepted pleading for it merely alleges the innocence of the respondent without rebutting or repudiating the evidence of the complainant. XPN: When it contains countervailing evidence or defenses and evidence which rebuts or repudiates the charges; in which case it will be treated as a counteraffidavit.

Dismissal or issuance of subpoena

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Note: If one files a motion to dismiss and he only asserts that the case should be dismissed, then the motion to dismiss is a mere scrap of paper. If the respondent does not later on submit a counter-affidavit, it will constitute a waiver on his part to file a counter-affidavit.

4.

b.

c. d.

Clarificatory hearing, if necessary e.

Within ten days from the submission of the counter-affidavit, other affidavits and documents filed by the respondent, a hearing may be set by the investigating officer, only if there are facts and issues to be clarified either from a party or a witness. The parties do not have the right to examine or cross-examine each other or the witnesses. If they have questions to ask, they shall submit the questions to the investigating officer who shall ask the questions (Sec. 3(e)) Note: Parties are not allowed to cross examine the witnesses during the clarificatory proceeding, only the prosecutor can ask questions from any of the witnesses during the clarificatory proceeding to clarify some gray areas in the affidavit or counter affidavit. However, the parties and their lawyers are not precluded from submitting questions to the prosecutor who may ask such questions at his discretion. (Paderanga v. Drilon, G.R. No. 96080, Apr. 19, 1991).

5.

Resolution of the investigating officer Within ten days from the termination of the investigation, the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial (Sec. 3(f)) If the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint (Sec. 4) The information shall contain a certification by the investigating officer under oath in which he shall certify the following: a.

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That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses;

That there is reasonable ground to believe that a crime has been committed; That the accused is probably guilty thereof That the accused was informed of the complaint and of the evidence submitted against him; and That he was given an opportunity to submit controverting evidence (Sec. 4 Rule 112)

Within five days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the parties of such action (Sec. 4Rule 112). Q: What is the difference between preliminary investigation conducted by the prosecutor and one conducted by the judge? A: The prosecutor is not bound by the designation of the offense in the complaint. After preliminary investigation, he may file any case as warranted by the facts. The judge cannot change the charge in the complaint but must make a finding on whether or not the crime charged has been committed. Q: Who are the officers authorized to conduct preliminary investigation? A: 1. 2. 3.

Provincial or city prosecutors and their assistants: National and Regional State Prosecutors; and Other officers as may be authorized by law (COMELEC, PCGG, Ombudsman)

Note: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions (Sec. 2, as amended by AM 05-8-26-SC, Oct. 3, 2005).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Q: What is the extent of the authority of the Ombudsman in the conduct of preliminary investigation? A: The power to investigate and to prosecute granted to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by the regular courts (Office of the Ombudsman v. Breva, G.R. No. 145938, Feb. 10, 2006). Note: This however does not include administrative cases of court personnel because the 1987 Constitution vests in the SC administrative supervision over all courts and court personnel.

Q: May prosecutors conduct preliminary investigation of offenses falling within the original jurisdiction of the Sandiganbayan? A: No, the Ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayan cases (Ledesma v. CA, G.R. 161629, July 29, 2005). The Ombudsman is authorized to take over at any stage, from any investigatory agency of the government, the investigation of such cases (Sec. 15, R.A. 6770). Note: A prosecutor however has shared authority to investigate and prosecute Ombudsman cases not cognizable by the Sandiganbayan(Herrera, Vol. IV, p. 287, 2007 ed.)

Q: Who may conduct preliminary investigation of election cases? A: The Commission on Elections is vested the power to conduct preliminary investigations; it may deputize other prosecuting arms of the government to conduct preliminary investigation and prosecute offenses (People v. Basilla, G.R. No. 83938-40, Nov. 6, 1989). 1. NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION Note: Rule 112 pertains to preliminary investigation conducted by the prosecutor

Q: What is preliminary investigation? A: It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been

committed and the respondent is probably guilty thereof, and should be held for trial (Sec. 1). Q: What is the nature of the right of preliminary investigation? A: It is merely inquisitorial and a means of determining the persons who may be reasonably charged with a crime. It is not a trial of the case on the merits (Herrera, Vol. IV, p. 273, 2007 ed.) Note: It does not place the person against whom it is taken in jeopardy.

Q: What is the difference between the preliminary investigation conducted by the prosecutor and the preliminary investigation conducted by the judge? A: The preliminary investigation conducted by the prosecutor is EXECUTIVE in nature, it is for the purpose of determining whether or not there exist sufficient ground for the filing of information; The preliminary investigation conducted by the judge which is properly called PRELIMINARY EXAMINATION is for the determination of probable cause for the issuance of warrant of arrest. (P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642, March 6, 2002) Q: Does the lack of preliminary investigation affect the court’s jurisdiction? A: Absence of preliminary investigation does not affect the jurisdiction of the court but merely the regularity of the proceedings (People v. De Asis, G.R. No. 105581, Dec. 7, 1993). Q: Is preliminary investigation considered part of the trial? A: No, it is not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. The dismissal of the case by the investigator will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another preliminary investigation (US v. Marfori,G.R. No. 10905, Dec. 9, 1916). Q: Can the right to preliminary investigation be waived? A: Yes, by failure to invoke the right prior to or at least at the time of plea (People v. Gomez, G.R. No. L-29590, Sept. 30, 1982).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What are the instances wherein the right to preliminary investigation is deemed waived?

2.

A: It shall be deemed waived by: 1. 2.

3.

express waiver or by silence (Herrera, Vol. IV, p. 278, 2007 ed.); failure to invoke it during arraignment (People v. De Asis, G.R. No. 105581, Dec. 7, 1993); and consenting to be arraigned and entering a plea of not guilty without invoking the right to preliminary investigation (People v. Bulosan, G.R. No. 58404, Apr. 15, 1988);

3.

4. 5.

Note: 1.

2.

The waiver, whether express or implied, must be in a clear and unequivocal manner (Herrera, Vol. IV, p. 278, 2007 ed.) The right to preliminary investigation cannot be raised for the first time on appeal (Pilapil v. Sandiganbayan, G.R. No. 101978, Apr. 7, 1993).

Q: What are the instances wherein the right to preliminary investigation is not deemed waived? A:

2.

Failure to appear before the prosecutor during the clarificatory hearing or when summoned, when the right was invoked at the start of the proceeding (Larranaga v. CA, G.R. No. 130644, Mar. 13, 1998); or When the accused filed an application for bail and was arraigned over his objection and the accused demanding that preliminary investigation be conducted (Go v. CA, G.R. No. 101837, Feb. 11, 1992).

Q: What is the effect if the accused raises the issue of lack of preliminary investigation before entering plea? A: The court, instead of dismissing the information, should conduct the preliminary investigation or order the prosecutor to conduct it (Larranaga v. CA, G.R. No. 130644, Mar. 13, 1998). 2. PURPOSES OF PRELIMINARY INVESTIGATION Q: What are the purposes of conducting preliminary investigation? A: 1.

234

Q: When is preliminary investigation required to be conducted? A: GR: Before the filing of a complaint or information for an offense where the penalty prescribed by law is imprisonment of at least 4 yrs., 2 months and 1 day. XPN: 1.

1.

For the investigating prosecutor to determine if the crime has been committed;

To protect the accused from inconvenience, expense and burden of defending himself in a formal trial unless probability of his guilt is first ascertained by a competent officer; To secure the innocent against hasty, malicious, and oppressive prosecution and to protect him from an open and public.accusation of a crime and anxiety of a public trial; To protect the State from having to conduct useless and expensive trial; and To determine the amount of bail, if the offense is bailable(Herrera, Vol. IV, p. 273, 2007 ed.).

2.

Where an information or complaint is filed pursuant to Sec. 7, Rule 112, i.e. the complaint or information is filed directly in court (Sec. 1); For cases requiring preliminary investigation, when a person is lawfully arrested without a warrant provided that inquest was made in accordance with Rule 112 (Sec. 6).

Note: Cases falling under summary procedure or punishable with a penalty of imprisonment less than 4 yrs., 2 months and 1 day does not require preliminary investigation. See discussion on Sec. 1, Rule 110 for cases directly filed in court.

Q: What are the rights of the respondent in a preliminary investigation? A: To: 1. 2. 3.

submit a counter affidavit; examine the evidence submitted by the complainant at his own expense; and be present during the clarificatory hearing (Sec. 3, Rule 112).

Note: Object evidence need not to be furnished but is available for examination, copying or photographing at the expense of the requesting party (Sec. 3, Rule 112).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Q: Who are authorized to conduct a preliminary investigation? A: 1. 2. 3.

Provincial or City prosecutors and their assistants; National and Regional State Prosecutors; and Other officers as may be authorized by law (e.g.Ombudman; authorized officer deputized by COMELEC for election offenses).

Q: What is the effect if lack of preliminary investigation is raised in a proceeding pending before the Sandiganbayan? A: The proceeding will be held in abeyance and case should be remanded to the Office of the Ombudsman or the Special Prosecutor to conduct the preliminary investigation (Ong v. Sandiganbayan, G.R. No. 126858, Sept. 26, 2005). Q: What is the effect of absence of preliminary investigation? A: It does not: 1.

2. 3. 4.

become a ground for a motion to quash the complaint or information (Sec. 3, Rule 117); affect the court’s jurisdiction (People v. De Asis, G.R. No. 105581, Dec. 7, 1993); impair the validity of the information or render it defective; and justify the release of the respondent or nullify the warrant of arrest against him (Larranaga v. CA, G.R. No. 130644, Mar. 13, 1998).

Q: What are the instances when preliminary investigation is not required even if the offense requires a preliminary investigation?

2.

3.

the absence or unavailability of an inquest prosecutor, the 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. 7) The fact that a person was lawfully arrested without a warrant does not absolutely bar him from availing of a preliminary investigation because before the complaint or information is filed, he may ask that a preliminary examination be conducted. However, before he is granted the preliminary investigation asked for by him, he must sign a waiver of the provisions of Article 125 of the Revised Penal Code. If the complaint or information has been filed without a preliminary investigation, the accused who desires a preliminary investigation, may, within five days from the time he learns of its filing, ask for a preliminary investigation (Sec. 7)

Note: The waiver of the provisions of Article 125 does not bar the person arrested from applying for bail and even while the preliminary investigation is pending.

3. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE Q. What is probable cause? A: The existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Q: What degree of proof is necessary to warrant the filing of an information or complaint in court? A: Probable cause. It need not be based on evidence establishing guilt beyond reasonable doubt but only such as may engender a wellfounded belief that an offense has been committed and that the accused is probably guilty thereof.

A: 1.

If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation, i.e., the penalty is at least four years, two months and one day, an information or complaint may be filed against him without need for a preliminary investigation. If he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of preliminary investigation. In

Q: Who may conduct the determination of probable cause? A: It depends THE FISCAL OR PROSECUTOR, if the determination of probable cause is for purposes of indictment; such finding will not be disturbed by the court unless there is finding of grave abuse of discretion. THE COURT, if the determination of probable cause is for the purposes of issuance of warrant of arrest.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

235

UST GOLDEN NOTES 2011 4. RESOLUTION OF INVESTIGATING PROSECUTOR Q: How does the investigating prosecutor resolve the findings after preliminary investigation?

Q: Are the findings or resolution of the investigating prosecutor final?

A: 1. If he finds probable cause to hold the respondent for trial, he shall prepare a resolution and certify under oath in the information that: a. he or an authorized has personally examined the complainant and his witnesses; b. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; c. that the accused was informed of the complaint and evidences against him; d. that he was given opportunity to submit controverting evidence 2. If he finds no probable cause, he shall recommend the dismissal of the complaint 3. Within 5 days from his resolution, he shall forward the record of the case to the provincial or city prosecutor of chief state Prosecutor of the Ombudsman. They shall act on the resolution within 10 days from receipt and shall immediately inform the parties of such action. 4. No complaint of information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman. 5. If the investigating prosecutor recommends the dismissal of the complaint, but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or Ombudsman on the ground that probable cause exists, the latter may either: a. by himself, file the information; or b. direct another assistant prosecutor to file the informationwithout need for a new preliminary investigation. 6. The Secretary of Justice may, upon petition by a proper party or by itself, reverse or modify the resolution of the provincial or city prosecutor, the chief state prosecutor, or the ombudsman. In such a case, he shall direct the prosecutor concerned to

236

either file the information without need for a new preliminary investigation or to dismiss or move for its dismissal if already filed in court.

A: No, the resolution of the investigating prosecutor is merely recommendatory. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Sec. 4). Q: What is the rule when the recommendation for dismissal by the investigating prosecutor is disapproved? A: If the recommendation of the investigating prosecutor is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter, may by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation (Sec. 4) Q: What is the rule when the resolution is reversed or modified by the Secretary of Justice? A: If upon petition by a proper party or motuproprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties (Sec. 4) Q: What is the effect of the filing of a petition for review before the DOJ if the information was already filed in court? A: Should the information be already filed in court but the accused filed a petition for review of the findings of the prosecutors with the DOJ, the court is bound to suspend the arraignment of the accused for a period not exceeding 60 days (Sec. 11, Rule 116). Note: Under the present Rules, once a petition for review is filed before the DOJ after the information is filed in court, only a motion for suspension of the proceedings in view of the pendency of the petition for review before the DOJ may be filed which must be made before arraignment. The suspension of the proceedings before the court would only last for 60

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE days reckoned from the date of the filing of the petition for review.

before the CA pursuant to Rule 43 (De Ocampo v. Sec. Of Justice, G.R. No. 147392, Jan. 25, 2006).

Q: Are there instances where a new preliminary investigation is not necessary?

Q: What is the remedy against the resolution of the Ombudsman?

A: Yes, when: 1. amendment to information is not substantial (Villaflor v. Vivar, G.R. No. 134744, Jan. 16, 2001); 2. the court orders the filing of correct information involving a cognate offense (Sy Lim v. CA, G. R. No. L-37494, Mar. 30,1982); and 3. if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry to another would reveal (Orquinaza v. People, G.R. No. 165596, Nov. 15, 2005; Herrera, Vol. IV, p. 281, 2007 ed.)

A: The resolution of the Ombudsman may be subject of petition for review via Rule 43 before the CA or a special civil action for certiorari via Rule 65 before the SC.

5. REVIEW Q: What is the remedy of the aggrieved party from the resolution of the investigating prosecutor as approved by his superior? A: A verified petition for review within 15 days from the resolution or denial of the motion for reconsideration. The Secretary of Justice may reverse or modify the resolution. The Secretary of Justice may also motuproprio reverse or modify the resolution. The Secretary of Justice shall direct either the filing of the complaint without the need for a new preliminary investigation or move for the dismissal of the complaint (Sec. 4). Note: The Secretary of justice may review resolutions of his subordinates in criminal cases despite the information being filed in court (Community Rural Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909, Apr. 6, 2005).

Q: What is the remedy of an aggrieved party against the resolution of the Secretary of Justice? A: Such resolution may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction (Ching v. Sec. Of Justice, G.R. No. 164317, Feb. 6, 2006). Alternative Answer: The resolution of the DOJ is appealable administratively before the Office of the President, and the decision of the latter may be appealed

The resolution of the Ombudsman, if the latter acted without or in excess of jurisdiction, may be nullified by a writ of certiorari(Ramiscal v. Sandiganbayan, G.R. Nos. 109727-28, Aug. 18, 2006) When the officer conducting a conducting a preliminary investigation, i.e. the Ombudsman, acts without or in excess of authority and resolves to file an information despite the absence of probable cause, such may be nullified by a writ of certiorari (Mendoza-Arce v. Office of the Ombudsman, G.R. No. 149148, Apr. 5, 2002). Note: In the absence of grave abuse of discretion, the court will not interfere or pass upon the findings of the Ombudsman to avoid its being hampered by innumerable petitions assailing the dismissal of the investigatory proceedings conducted by the latter (Tejano v. Ombudsman, G.R. No. 159190, June 30, 2005).

Q: Does the SC and CA have the power to review preliminary investigation? A: Yes, they have the power to review the findings of prosecutors in preliminary investigations (Social Security System v. DOJ, G.R. No. 158131, Aug. 8, 2007). 6. WHEN WARRANT OF ARREST MAY ISSUE CONSTITUTIONAL BASIS: No warrant of arrest should issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce (Section 2, Article VI, 1987 Constitution)

Q: What is preliminary examination? A: Preliminary examination is the proceeding for the determination of the existence of probable cause for the purpose of issuing a warrant of arrest. Q: What is a warrant of arrest? A: A warrant of arrest is a legal process issued by a competent authority directing the arrest of a

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 person or persons upon the grounds stated therein (Herrera, Vol. IV, p. 345, 2007 ed.). Q: When may a warrant of arrest be issued? A: By the RTC 1. Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. 2. He may immediately dismiss the case if the evidence fails to establish probable cause. 3. If he finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused has already been arrested by virtue of a warrant issued by the MTC judge who conducted the preliminary investigation or if he was arrested by virtue of a lawful arrest without warrant. 4. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidencewithin 5 days from notice and the issue must be resolved within 30 days from the filing of the complaint or information. By the MTC 1. If the preliminary investigation was conducted by a prosecutor, same procedure as above 2. If the preliminary investigation was conducted by the MTC judge and his findings are affirmed by the prosecutor, and the corresponding information is filed, he shall issue a warrant of arrest. 3. However, without waiting for the conclusion of the investigation, he may issue a warrant of arrest if he finds after: 1. an examination in writing and under oath of the complainant and his witnesses 2. in the form of searching questions and answers that probable cause exists AND that there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice. Q: When is a warrant of arrest not necessary? A: 1. 2. 3.

When the accused is already under detention issued by the MTC When the accused was arrested by virtue of a lawful arrest without warrant When the penalty is a fine only

Q: Are “John Doe” warrants valid? A: Generally, John Doe warrants are void because they violate the constitutional provision that requires that warrants of arrest should particularly describe the person or persons to be arrested. But if there is sufficient description to identify the person to be arrested, then the warrant is valid. Q: What are the principles governing the finding of probable cause for the issuance of a warrant of arrest? A: 1. There is a distinction between the objective of determining probable cause by the prosecutor and by the judge. The prosecutor determines it for the purpose of filing a complaint or information, while the judge determines it for the purpose of issuing a warrant of arrest – whether there is a necessity of placing him under immediate custody in order not to frustrate the ends of justice. 2. Since their objectives are different, the judge should not rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. The judge must decide independently and must have supporting evidence other than the prosecutor’s bare report. 3. It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. He must have sufficient supporting documents upon which to make his independent judgment. Q: How should the complaint or information be filed when the accused is lawfully arrested without warrant? A: The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules. In the absence of an inquest prosecutor, the offended party or any peace officer may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer. 7. CASES NOT REQUIRING A PRELIMINARY INVESTIGATION Q: What are those cases which do not require preliminary investigation? A: Those offenses punishable by imprisonment of less than 4 years, 2 months and 1 day.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Q: What is the procedure if the complaint is filed with the prosecutor? A: 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 Rule 112 Section 3a shall be observed. Q: What is the procedure if the complaint is filed with the MTC? A: Same procedure shall be observed Note: in all other cases cognizable by the MTC or MCTC, the issuance of the warrant of arrest is discretionary on the part on the part of the judge. As long as he is satisfied that there is no need for the necessity of placing the accused under custody, he may issue summons instead of warrant of arrest.

Q: What are the instances when preliminary investigation is not required even if the offense requires a preliminary investigation?

Note: The waiver of the provisions of Article 125 does not bar the person arrested from applying for bail and even while the preliminary investigation is pending.

8. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION Q: If there was no preliminary investigation conducted, what are the remedies of the accused? A: 1. Refuse to enter plea upon arraignment and object to further proceedings upon such ground; 2. Insist on preliminary investigation; 3. File a certiorari, if refused; 4. Raise lack of preliminary investigation as error on appeal (US v. Banzuela, GR No. 10172,1915) 5. File for Prohibition (Conde v. CFI, GR No. L-21236, October 1, 1923 9. INQUEST Q: What is the procedure for conducting inquest proceeding?

A: 1.

2.

3.

If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation, i.e., the penalty is at least four years, two months and one day, an information or complaint may be filed against him without need for a preliminary investigation. If he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of preliminary investigation. In the absence or unavailability of an inquest prosecutor, the 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. 7) The fact that a person was lawfully arrested without a warrant does not absolutely bar him from availing of a preliminary investigation because before the complaint or information is filed, he may ask that a preliminary examination be conducted. However, before he is granted the preliminary investigation asked for by him, he must sign a waiver of the provisions of Article 125 of the Revised Penal Code. If the complaint or information has been filed without a preliminary investigation, the accused who desires a preliminary investigation, may, within five days from the time he learns of its filing, ask for a preliminary investigation (Sec. 7)

A: Receipt of the Inquest Officer of the referral documents Arrest NOT properly effected

Release shall be recommended

If evidence does not warrant the conduct of a preliminary investigation, the detained person shall be released otherwise a preliminary investigation shall be conducted.

Arrest properly effected

A preliminary investigation may be conducted if requested

Otherwise inquest proper shall be conducted

Determination of Probable Cause

If there is probable cause, information shall be filed; otherwise release shall be recommended.

Q: What is an inquest? A: It 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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court (Sec. 1, DOJ Circular No. 61).

a. Punishable by imprisonment of more than 6 years even if Congress is in session (People v. Jalosjos, G.R. No. 132875-76, Feb. 3, 2000) b. If the offense is not punishable by imprisonment of not more than 6 years, the privilege does not apply even if congress is not in session.

Q: When should the accused arrested without a warrant ask for a preliminary investigation? A: 1.

2.

Before the complaint or information is filed in court, anytime before the filing provided he signs a waiver of the provision of Art. 125 of the RPC providing for the period of detention, in the presence of his counsel; When the complaint or information is already filed in court, within 5 days from the time he learns of the filing (Sec. 6).

2.

Under the generally accepted principles of international law, sovereign and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charges d’affaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest;

3.

The arrest of duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics, subject to the principle of reciprocity (Sec. 4 and 7, RA 75).

E. ARREST 1. ARREST, HOW MADE Q: What is arrest?

Q: Who may issue a warrant of arrest?

A: Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

A: The 1987 Constitution speaks of “judges” which means judges of all levels. This power may not be limited much less withdrawn by Congress. The power to determine the existence of probable cause is a function of the judge and such power lies in the judge alone (People v. Inting,G.R. No. 85866, July 24, 1990).

Q: How is arrest made? A: It is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2).

2. ARREST WITHOUT WARRANT, WHEN LAWFUL

Note: Arrest may be made on any day, at any time of the day or night (Sec.6).

Q: What are the instances of a valid warrantless arrest?

Q: What is warrant of arrest?

A:

A: It is a legal process issued by a competent authority, directing the arrest of a person or persons upon the grounds stated therein (Herrera, Vol. IV, p. 345, 2007 ed.). Q: Who are persons not subject to arrest?

1.

2.

A: 1.

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A senator or member of the House of Representatives shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while congress is in session (Sec. 11, Art. VI, 1987 Constitution); However, the privilege of a senator or congressman will not apply when the offense is:

3.

When in the presence of the arresting person, the person to be arrested has committed, is actually committing or is attempting to commit an offense (in flagrante delicto arrest). When an offense has in fact been committed and the arresting person has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it (doctrine of hot pursuit). 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 temporarily confined while his case is pending or has escaped while being transferred from one confinement to another (Sec. 5).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 4. 5. 6.

Where the person who has been lawfully arrested escapes or is rescued. By the bondsmen for the purpose of surrendering the accused. Where the accused attempt to leave the country without permission of the court.

of the Dangerous Drugs Law. The violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime. (People v. Juatan, G.R. No. 104378, Aug. 20, 1996)

Q: What are the elements of hot pursuit arrest? Q: What is required by the phrase “in his presence”?

A: 1.

2. 3.

An offense has been committed (close proximity between the arrest and the time of commission of the crime); The offense has just been committed; and Probable cause based on personal knowledge of facts or circumstances that the person/s to be arrested committed it (Herrera, Vol. IV, p. 418, 2007 ed.)

NOTE: the probable cause justifying a warrantless arrest must, under the Rules, be based on personal knowledge of facts and circumstances on the part of the person making the arrest.

Q: The officers went to the scene of the crime where they found a piece of wood and a concrete hollow block used by the killers in bludgeoning the victim to death. A neighbor of the accused who witnessed the killing, pointed to Roberto as one of the assailants. Roberto was arrested three hours after the killing. Is the arrest a valid warrantless arrest? A: Yes. Under the abovementioned circumstances, since the policemen had personal knowledge of the violent death of the victim and of facts indicating that Roberto and two others had killed him, they could lawfully arrest Roberto without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. (People v. Gerente, 219 SCRA 756) Note: There is no rule on the exact proximity of the commission of the offense to the arrest. In the following instances, the Court ruled as invalid the warrantless arrest that took place: 1. 19 hours after the commission of the crime of murder (People v. Manlulu, 231 SCRA 701) 2. One day after the crime of robbery was committed (People v. Del Rosario, 305 SCRA 740) 3. Two days after a drug offense was committed (People v. Kimura, 428 SCRA 51)

Q: What is buy-bust operation? A: A form of entrapment which has been repeatedly accepted to be a valid means of arresting violators

A: It does not necessarily require that the arresting officer sees the offense, but it includes cases where the arresting officer hears the disturbance created and proceeds at once to the scene. The officer must have personal knowledge of offense just committed. Q: What is meant by personal knowledge? A: It means actual belief or reasonable grounds of suspicion that the person to be arrested is probably guilty of the offense based on actual facts. Q: How can an arresting officer have personal knowledge of facts when he was not present when the crime was committed? A: Personal knowledge has no reference to the actual commission of the crime but to personal knowledge of facts leading to probable cause. Q: What is the obligation of the arresting officer after the warrantless arrest? A: He must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under Art. 124 of the RPC.Jurisdiction over the person arrested must be transferred to the judicial authorities. Art. 125 is a procedural requirement in case of warrantless arrest. A case must be filed in court. The person must be delivered to the judicial authorities within the period specified in Art. 125 (Delay in the delivery of detained persons to the proper judicial authorities). 1. 2. 3.

Light penalties – 12 hours Correctional penalties – 18 hours Afflictive or capital penalties – 36 hours

The accused should be brought to the prosecutor for inquest proceedings wherein existence of probable cause will be determined. Then the judge shall issue a commitment order (order issued by the judge when the person charged with a crime is already arrested or detained) and not a warrant.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 3. METHOD OF ARREST

Q: What amount of force may be used in effecting an arrest?

Q: What are the modes of effecting arrest? A: 1. By actual restraint of the person to be arrested; 2. By his submission to the custody of the person making the arrest a. BY OFFICER WITH WARRANT b. BY OFFICER WITHOUT WARRANT c. BY PRIVATE PERSON Q: How may arrest be effected? A: Exception to the rule on giving information Arrest by officer by virtue of a warrant (Sec. 7)

A: No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2). NOTE: Reasonable amount of force may be used to effect arrest , an officer having the right to arrest an offender may use such force as necessary to effect his purpose, and to a great extent he is made the judge of the degree of force that may be properly exerted.

Q: May an officer break into a building or enclosure to make an arrest? What are the requisites?

Method of arrest

The officer shall inform the person to be arrested the cause of the arrest and the fact that the warrant has been issued for his arrest. Note: The officer need not have the warrant in his possession at the time of the arrest but must show the same after the arrest, if the person arrested so requires.

1. When the person to be arrested flees; 2. When he forcibly resists before the officer has an opportunity to inform him; and 3. When the giving of such information will imperil the arrest.

Arrest by officer without a warrant (Sec. 8) 1. when the person to be arrested is engaged in the commission of an offense or is pursued immediately The officer shall inform its commission; the person to be arrested 2. when he has escaped, of his authority and the flees, or forcibly resists cause of the arrest w/out before the officer has an a warrant opportunity to so inform him; and 3. when the giving of such information will imperil the arrest. Arrest by a private person (Sec. 9) The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. Note: Private person must deliver the arrested person to the nearest police station or jail, otherwise, he may be held criminally liable for illegal detention.

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1. when the person to be arrested is engaged in the commission of an offense or is pursued immediately its commission; 2. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and 3. when the giving of such information will imperil the arrest.

A: Yes, provided that: 1. The person to be arrested is or reasonably believed to be in the said building; 2. The officer has announced his authority and purpose for entering therein; 3. He has requested and been denied admittance (Sec. 11). Note: A lawful arrest may be made anywhere, even on a private property or in a house. This rule is applicable both where the arrest is under a warrant, and where there is a valid warrantless arrest.

Q: What can be confiscated from the person arrested? A: 1.

2. 3.

4.

Objects subject of the offense or used or intended to be used in the commission of the crime; Objects which are fruits of the crime; Those which might be used by the arrested person to commit violence or to escape; and Dangerous weapons and those which may be used as evidence in the case.

Note: Arrest must precede the serach, the process cannot be reversed. Nevertheless, a serach substantially contemporaneous with an arrest can precede the arrest at the outset of the search. Reliable information alone is not sufficient to justify a warrantless arres under Sec. 5, Rule 113.

Q: Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued the warrants of arrest. Learning of the issuance of the warrants, the 3 accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. On the date set for hearing of their motion, none of the accused showed up in the court for fear of being arrested.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE The RTC judge denied their motion. Did the RTC rule correctly? A: The RTC ruled correctly in denying the motion for reinvestigation and recall of the warrants of arrest because the accused have not surrendered their persons to the court. Jurisdiction over the person of the accused can only be obtained through arrest or voluntary surrender (Dimatulac v. Villon, G.R. No. 127107, Oct. 12, 1998). Alternative Answer: No. the court acquired jurisdiction over the person of the accused when they filed the aforesaid motion and invoked the court’s authority over the case, without raising the issue of jurisdiction over their person. Their filing the motion is tantamount to voluntary submission to the court’s jurisdiction and constitutes voluntary appearance. (2008 Bar Question) Q: When is warrant of arrest not necessary? A: When the: 1. Accused is already under detention; 2. Complaint or information was filed pursuant to a valid warrantless arrest; 3. complaint or information is for an offense penalized by fine only [Sec. 5 (c), Rule 112]; 4. Complaint or information is filed with the MTC and it involves an offense which does not require preliminary investigation, judge may issue summons instead of a warrant of arrest if he is satisfied that there is no necessity for placing the accused under custody [Sec. 8 (b), Rule 112]. Q: May authorities resort to warrantless arrest in cases of rebellion? A: Yes, since rebellion has been held to be a continuing crime, authorities may resort to warrantless arrests of persons suspected of rebellion, as provided under Sec. 5, Rule 113. However, this doctrine should be applied to its proper context – i.e., relating to subversive armed organizations, such as the New People’s Army, the avowed purpose of which is the armed overthrow of the organized and established government. Only in such instance should rebellion be considered a continuing crime (People v. Suzuki, G.R. No. 120670, Oct. 23, 2003). Q: When is an accused deemed to have waived the illegality of his arrest?

A: An accused who enters his plea of not guilty and participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as the accused, in this case, has voluntarily submitted himself to the jurisdiction of the court. (People v. Macam, G.R. Nos. L-91011-12, Nov. 24,1994) Q: Bogart was charged with the crime of kidnapping for ransom. However, he was arrested without a warrant. Bogart raised the illegality of his arrest for the first time on appeal to the Supreme Court. Is he now barred from questioning the illegality of the arrest? A: Yes. Bogart waived any irregularities relating to their warrantless arrest when he failed to file a motion to quash the Information on that ground, or to object to any irregularity in their arrest before they were arraigned. He is now estopped from questioning the legality of their arrest (People v. Ejandra, G.R. No. 134203, May 27, 2004). Q: How may an illegal arrest be cured? A: Illegality of warrantless arrest maybe cured by filing of information in court and the subsequent issuance by the judge of a warrant of arrest. Q: Is an application for bail a bar to questions of illegal arrest, irregular or lack of preliminary investigation? A: No, provided that he raises them before entering his plea. The court shall resolve the matter as early as possible, not later than the start of the trial on the case (Sec. 26, Rule 114). Q: May an accused who has been duly charged in court question his detention by a petition for habeas corpus? A: No. Once a person has been duly charged in court, he may no longer question his detention by petition for habeas corpus; his remedy is to quash the information and/or the warrant of arrest. Q: Fred was arrested without a warrant. After preliminary investigation, an information was filed in court. He pleaded not guilty during arraignment. After trial on the merits, he was found guilty by the court. On appeal he claims that judgment was void due to his illegal arrest. As Solicitor General, how would you refute said claim? A: Any objection to the illegality of the arrest of the accused without a warrant is deemed waived when he pleaded not guilty at the arraignment without

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 raising the question. It is too late to complain about a warrantless arrest after trial is commenced and completed and a judgment of conviction rendered against the accused (People v. Cabiles, G.R. No. 112035, Jan. 16, 1998).

examination of the accused (Alimpoos v. Court of Appeals, GR No L-27331, July 30, 1981) NOTE: Posting of bail does not bar one from questioning illegal arrest (Section 26, Rule 114)

5. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST

Q: What are the consequences of illegal arrests? A: 1.

2.

3. 4.

The documents, things or articles seized following the illegal arrest are inadmissible in evidence; The arresting person may be held criminally liable for illegal arrest under Art. 269, RPC; Arresting officer may be held civilly liable for the damages under Art. 32, NCC; and He may also be held administratively liable.

4. REQUISITES OF A VALID WARRANT OF ARREST Q: What are the essential requisites of a Valid Warrant of Arrest? A: 1. Issued upon probable cause 2. Determined personally by the judge after examination after oath of the complainant and the witnesses he may produce 3. The judge must personally evaluate the report of the prosecutor and the evidence adduced during the preliminary examination (Soliven v. Makasiar GR No L-82585,November 14, 1988) Note: The judge is only required to personally evaluate the report and the supporting documents submitted by the fiscal during the preliminary investigation and on the basis thereof he may dismiss, issue warrant or require further affidavits (People v. Inting,G.R. No. 85866, July 24, 1990).

4. The warrant must particularly describe the person to be arrested; 5. In connection with specific offense or crime Note: A warrant of arrest has NO expiry date. It remains valid until arrest is effected or warrant is lifted (Manangan v. CFI GR No 82760 August 30,1990)

Q: What is the remedy for warrants improperly issued? A: Where a warrant of arrest was improperly issued, the proper remedy is a petition to quash it, NOT a petition for habeas corpus, since the court in the latter case may only order his release but not enjoin the further prosecution or the preliminary

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Q: Who determines probable cause for the issuance of warrant of arrest? A: The determination of probable cause for the warrant of arrest is made by the judge 6. DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE Q: Who may conduct the determination of probable cause? A: FISCAL, for the purpose of either filing an information in court or dismissing the charges against the respondent, which is an executive function; such finding will not be disturbed by the court unless there is finding of grave abuse of discretion. THE COURT, if the determination of probable cause is for the purposes of issuance of warrant of arrest.The determination by the judge of probable cause begins only after the prosecutor has filed the information in court and the latter’s determination of probable cause is for the purpose of issuing an arrest warrant against the accused, which is judicial function (People vs. CA, 301 SCRA 475). Q: Distinguish the probable cause as determined by a fiscal from that of a judge? A: Probable Cause determined by Prosecutor For the filing of information in court

as the

an

Executive function

Basis: reasonable ground to believe that a crime has been committed

Probable Cause determined by Judge For the warrant

issuance

as the

of

Judicial function Basis: the report and the supporting documents submitted by the fiscal during the preliminary investigation and the supporting affidavits that may be required to be submitted.

Note: The determination of probable cause by the prosecutor is for a purpose different from that which is

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. (P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642, March 6, 2002)

Q: When may a judge issue a warrant of arrest? A: When probable cause exists, 1. 2.

Upon the filing of information by the prosecutor; or Upon application of a peace officer.

appearance at the trial (Almeda v. Villaluz GR No L31665, August 6, 1975); 2. To honor the presumption of innocence until his guilt is province beyond reasonable doubt; 3. To enable him to prepare his defense without being subjected to punishment prior to conviction Note: Bail is available only to persons in custody of the law. A person is in custody of the law when he has been either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authoritites. (Dinapol v. Baldado AM No 92898, August 5, 1993)

Q: When is bail available? F. BAIL 1. NATURE Q: What is bail? A: Under the Rules of Court it 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 prescribed under the rules (Sec. 1, Rule 114). Q: What is the nature of the right to bail? A: The right to bail is a constitutional right which flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom. Thus, the right to bail only accrues when a person is arrested or deprived of his liberty. The right to bail presupposes that the accused is under legal custody (Paderanga v. Court of Appeals, 247 ACRS 741) Q: What is the nature of bail proceedings?

A: Bail is available only to persons in custody of the law. Note: A person is in custody of law when he is either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities (Dinapol v. Baldado AM No. 92- 898, August 5, 1993)

Q: May bail still be filed after final judgment? A: Bail may not be filed once there is already a final judgment (Sec. 24, Rule 114). Note: If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. In no case shall bail be allowed after the accused has commenced to serve sentence.

Q: May prosecution witness be required to post bail? A: Yes. A prosecution witness may be required to post bail to ensure his appearance at the trial of the case where:

A: The hearing of an application for bail should be summary or otherwise in the discretion of the court. By 'summary hearing' is meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail (Ocampo v. Bernabe, 77 Phil. 55)

1. There is substitution of information (Section 4, Rule 119); and

Q: What are the purposes of bail?

1. Corporate surety/ Bail bond;

A: 1. To relieve an accused from the rigors of imprisonment until his conviction and yet secure his

2. Where the court believes that a material witness may not appear at the trial (Section 14, Rule 119) Q: What are the forms of bail? A:

a.

An obligation under seal given by the accused with one or more sureties and made payable to the proper officer with the condition to be void

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

b.

c.

upon performance by the accused of such acts as he may be legally required to perform; The accused goes to an authorized bonding company and he will pay a premium for the service which is a percentage of the total amount of bail. The bonding company will then go to the court and execute an undertaking, or "security bond" in the amount of the bail bond in behalf of the accused, that if the accused is needed, the bonding company will bring him before the court; If the accused jumps bail, the bond will be cancelled and the bonding company will be given sufficient time to locate the whereabouts of the accused who posted bail but later on jumps bail. Notice to bonding company is notice to the accused. Notice is usually sent to the bonding company in order to produce the body of the accused.

Note: Liability of surety/bondsman covers all three stages: i. trial ii. promulgation iii. execution of sentence

2. Property bond; a.

b.

c.

No bail shall be approved unless the surety is qualified (Sec. 13).

3. Cash deposit/ Cash bond; a.

b.

c.

d.

e.

It is the deposited by the accused himself or any person acting in his behalf; Cash shall be in the amount fixed by the court or recommended by the prosecutor who investigated the case; It is to be deposited before the: i. Nearest collector of internal revenue; ii. Provincial, city or municipal treasurer; or iii. Clerk of court where the case is pending; No further order from the court is necessary for the release of the accused if the conditions prescribed were complied with (Sec. 14); If the accused does not appear when required, the whole amount of the cash bond will be forfeited in favor of the government and the accused will now be arrested.

4. Recognizance

The title of the property will be used as security for the provisional liberty of the accused which shall constitute a lien over the property; The accused shall cause the annotation of the lien within 10 days after approval of the bond before the: i. Registry of Deeds if the property is registered; or ii. Registration Book in the Registry of Deeds of the place where the land lies and before the provincial, city or municipal assessor on the corresponding tax declaration if property is not registered (Sec. 11); The person who undertakes the conditions of a regular bond will be the custodian of the accused during the time that he is under provisional liberty.]

Note: In all cases, the surety of properties must be worth the amount specified in his

246

own undertaking over and above all just debts, obligations and properties exempt from execution (Sec. 12).

a.

b.

An obligation of record, entered into before some court or magistrate duly authorized to take it with the condition to do some particular act. It is an undertaking of a disinterested person with high credibility wherein he will execute an affidavit of recognizance to the effect that when the presence of the accused is required in court, the custodian will bring him to that court. This is allowed for light felonies only.

Note: If the accused does not appear despite notice to the custodian, or the person who executed the recognizance does not produce the accused, he may be cited for contempt of court. This is the remedy because no money is involved in recognizance. BAIL BOND An obligation under seal given by the accused with one or more

RECOGNIZANCE An obligation of record entered into before some court or magistrate duly

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE sureties, and 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.

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: Yes, when a person lawfully arrested without a warrant asks for preliminary investigation before the complaint or information is filed in court, he may apply for bail (Sec. 6, Rule 112). Q: Is arraignment required before the court grants bail? A: NO, for the following reasons:

Q: Where should bail be filed? A: 1. 2.

3.

4.

In the court where the case is pending; or In the absence or unavailability of the judge thereof, with any RTC judge, MTC judge, or MCTC judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any RTC of said place, or if no judge thereof is available, with any MTC judge, MCTC therein. 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).

Note: Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or on appeal. When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending (Sec. 19).

1. The trial court could ensure the presence of the accused at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings (Section 2b, Rule 114); and 2. The accused would be placed in a position where he has to choose between filing a motion to quash and thus delay his release on bail, and foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail (Lavides v. Court of Appeals GR No. 129670, February 1, 2000 Note: When bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. An application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116, Jan. 28, 2003).

Q: What are the conditions or requirements of bail? A:

Q: Is hearing required for the grant of bail?

1.

A: YES, In all cases whether the bail is a matter of right or discretion a hearing is required. Q: If an information was filed in the RTC Manila charging Mike with homicide and he was arrested in Quezon City, in what court or courts may he apply for bail? Explain. A: Mike may apply for bail in RTC Manila where the information was filed or in the RTC Quezon City where he was arrested, or if no judge thereof is available, with any MTC judge or MCTC judge therein. Q: Is bail investigation?

available

during

preliminary

2.

3.

4.

The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the court, irrespective of whether the case was originally filed in or appealed to it. The accused shall appear before the proper courts whenever so required by the court or these rules. 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 thereat. In such case, the trial may proceed in absentia. The bondsman shall surrender the accused to court for execution of the final judgment (Sec. 2, Rule 114).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Note: No additional conditions may be imposed. However, when the court finds that there is likelihood of the accused jumping bail or committing other harm to the citizenry is feared, the court may grant other conditions in granting bail (Almeda v. Villaluz, G.R. No. L-31665, Aug. 6, 1975).

Q: What are the guidelines regarding the effectivity of bail? A: The Supreme Court en banc laid the following policies concerning the effectivity of the bail of the accused: 1.

2.

3.

When the accused is charged with an offense which is punishable by a penalty lesser than reclusion perpetua at the time of the commission of the offense, or the application for bail and thereafter he is convicted of a lesser offense than that charged, he may be allowed to be released on the same bail he posted, pending his appeal provided, he does not fall under any conditions of bail. The same rule applies if he is charged with a capital offense but later on convicted of a lesser offense, that is, lower than that charged. If on the other hand, he is convicted of that offense which was charged against him, his bail shall be cancelled and he shall thereafter be placed in confinement. Bail in these circumstances is still not a matter of right but only upon the sound discretion of the court (Herrera, Vol. IV, p. 470, 2007 ed.).

Q: What are the duties of the trial judge if an application for bail is filed? A: 1.

2.

3.

4.

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Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Sec. 18, Rule 114); Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Secs. 7 and 8, Rule 114); Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, A.M. No. 92-7-360-0, Apr. 6, 1995); If the guilt of the accused is not strong, discharge the accused upon the approval

of the bailbond. Otherwise, petition should be denied (Sec. 19) Q: Who has the burden of proof in bail applications? A: It is the prosecution who has the burden of showing that evidence of guilt is strong at the hearing of an application for bail filed by a person who is charged for the commission of a capital offense or offense punishable by reclusion perpetua or life imprisonment (Sec. 8, Rule 114). 2.

WHEN A MATTER OF RIGHT; EXCEPTIONS

Q: When is bail a matter of right? A: In the MTC, it is a matter of right before or after conviction, regardless of the offense. In the RTC, GR: it is a matter of right before conviction, XPNs: offenses punishable by death, reclusion perpetua, or life sentence and the evidence of guilt is strong, in which case it is discretionary. Note: The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However where the grant of bail is discretionary, the prosecution may show proof to deny the bail.

Q: Is notice of hearing required? A: Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant’s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. Hearing, however is not required where Bail is recommended by the prosecution and it is a matter of right. Q: When the accused is entitled as a matter of right to bail, may the court refuse to grant him bail on the ground that there exists a high degree of probability that he will abscond or escape? Explain. A: No. What the court can do is to increase the amount of bail. One of the guidelines that the judge may use in fixing a reasonable amount of bail is the probability of the accused appearing in trial. (1999 Bar Question)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Note: Where the offense is bailable, the mere probability that the accused will escape or 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 the amount is not excessive (Sy Guan v. Amparo, G.R. No. L-1771, Dec. 4, 1947).

3. WHEN A MATTER OF DISCRETION Q: When is bail a matter of discretion? A: Bail is a matter of discretion 1. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; 2. If the penalty of imprisonment exceeds six (6) years but not more than 20 years, bail shall be denied upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: a. That he is a recidivist, quasirecidivist or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; b. That he previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; c. That he committed the offense while on probation, parole, or under conditional pardon; d. That the circumstances of his case indicate the probability of flight if released on bail; or e. That there is undue risk that during the pendency of the appeal, he may commit another crime (Sec. 5). 3. Regardless of the stage of the criminal prosecution, a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is not strong (Sec. 7); and 4. Juvenile charged with an offense punishable by death, reclusion perpetua or life imprisonment evidence of guilt is strong (Sec. 17, A.M. No. 02-1-18-SC).

Q: What is the remedy of the accused when bail is discretionary? A: When bail is discretionary, the remedy of the accused is to file a petition for bail. Once a petition for bail is filed, the court is mandated to set a hearing. The purpose of the hearing is to give opportunity to the prosecution to prove that the evidence of guilt is strong. If strong, bail will be denied. If weak, the bail will be granted. Q: Where is the application for bail filed where the accused is convicted by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment? A: 1. With the trial court despite the filing of a notice of appeal provided that it has not transmitted the original record to the appellate court; 2. With the appellate court of the decision of the trial court convicting the accused changed the nature of the offense from non- bailable to bailable. Q: Is the right to bail available in extradition cases? A: Yes. 1.

2.

3.

4.

5.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the constitution. While extradition is not a criminal proceeding, it still entails a deprivation of liberty on the part of the potential extraditee and furthermore, the purpose of extradition is also the machinery of criminal law. The Universal Declaration of Human Rights applies to deportation cases, hence, there is no reason why it cannot be invoked in extradition cases. The main purpose of arrest and temporary detention in extradition cases is to ensure that the potential extraditee will not abscond. Under the principle of pactasuntservanda, the Philippines must honor the Extradition Treaty it entered into with other countries. Hence, as long as the requirements are satisfactorily met, the extraditee must not be deprived of his right to bail (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

249

UST GOLDEN NOTES 2011 Q: What is the rationale in allowing bail in extradition cases?

b. c.

A: The SC held that the Philippines, along with other members of the family of nations, is committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).

release of the child in conflict with the law on bail; or transfer of the minor to a youth detention home/youth rehabilitation center (Sec. 35, R.A. 9344).

Note: The court shall not order the detention of a child in a jail pending trial or hearing of his/her case (Sec. 35, R.A. 9344).

Q: What is the quantum of proof required in granting or denying bail in extradition cases?

Q: What if the minor is unable to furnish bail?

A: The required proof of evidence is “clear and convincing evidence” and not preponderance of evidence nor proof beyond reasonable doubt (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).

A: The minor shall be, from the time of his arrest, committed to the care of the DSWD or the local rehabilitation center or upon recommendation of DSWD or other agencies authorized by the court may, in its discretion be released on recognizance (Sec. 36, R.A. 9344)

Q: Who has the burden of proof in the application for bail in extradition cases? A: The burden lies with the extraditee(Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007). Q: Is bail available on court martial offenses? A: No. An accused military personnel triable by courts martial or those charged with a violation of the Articles of War does not enjoy the right to bail. Q: Is bail available in deportation proceedings? A: Yes, however bail in deportation proceedings is WHOLLY DISCRETIONARY Q: Is a minor charged with a capital offense entitled to bail? A: No. A juvenile charged with an offense punishable by death, reclusion perpetua or life imprisonment shall not be admitted to bail when evidence of guilt is strong (Sec. 17, R.A. 9344). Q: What are the rules provided by law with regard to juveniles in conflict with the law with respect to bail of non-capital? A: 1.

2.

250

The privileged mitigating circumstances of minority shall be considered. (Sec. 34, R.A. 9344, Juvenile and Justice Act of 2006) Where a child is detained, the court shall order the: a. release of the minor on recognizance to his/her parents and other suitable person;

Q: Charged with murder Leviste was convicted with the crime of homicide and was sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum. Pending appeal he applied for bail, CA denied his application for bail. Petitioner’s theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal. In an application for bail pending appeal by an appellant sentenced to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? A: In an application for bail pending appeal by an appellant sentenced for more than six years, the discretionary nature of the grant of bail pending appeal does not mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court (Leviste v. CA, GR No. 189122, March 17, 2010) Note: The third paragraph of Section 5 of Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding 6 years. The first scenario deals with the circumstances enumerated in the said paragraph NOT being present. The second scenario contemplates the existence of AT LEAST ONE of the said circumstances. In the first situation, bail is a matter of SOUND JUDICIAL DISCRETION. This means that, if none of the circumstances mentioned in the 3rd paragraph of Sec. 5

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bailnegating circumstances in the third paragraph of Section 5, Rule 114 are absent. On the other hand on the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Thus a finding that none off the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court the less stringent sound discretion approach (Leviste v. CA, GR No. 189122, March 17, 2010).

4. 5. 6. 7.

Character and reputation of the accused; Age and health of the accused; Weight of evidence of the accused; Probability of the accused to appear in trial; 8. Forfeiture of other bail; 9. The fact that the accused was a fugitive from justice when arrested; or 10. Pendency of other cases when the accused is on bail (Sec. 9). Q: What is the effect of grant of bail? A: The accused shall be released upon approval of the bail by the judge (Sec. 19).

4. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES

Q: May the amount of bail be reduced or increased?

RA 9346 An Act Prohibiting the Imposition of Death Penalty in the Philippines abolished death penalty

A: Yes, after the accused is admitted to bail, the court may, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period (Sec. 20).

Q: What is a capital offense? A: Capital offense refers to an offense which, under the law existing at the time of its commission and at the time of its application to be admitted to bail, may be punished with reclusion perpetua or life imprisonment or death. Note: if the offense is punishable with reclusion perpetua or life imprisonment or death at the time of the commission but no longer so at the time of the application for bail, or if the offense was not yet punishable with death when the crime was committed but already so punishable at the time admission to bail was applied for, the crime is not a capital offense within the meaning of the rule.

Q: Is capital offense bailable? A: GR: Capital offense or those punishable by reclusion perpetua, life imprisonment or death are NOT bailable when evidence of guilt is strong. XPN: If the accused charged with the capital offense is a minor 5. GUIDELINES IN FIXING AMOUNT OF BAIL Q: What are the guidelines in fixing the reasonable amount of bail? A: 1. 2. 3.

Financial ability of the accused to give bail; Nature and circumstances of the offense; Penalty of the offense charged;

6. BAIL WHEN NOT REQUIRED Q: What are the instances when bail is not required? A: Instances when accused may be released on recognizance without posting bail or on reduced bail. ON REDUCED BAIL OR ON HIS OWN RECOGNIZANCE

1. The offense charged is a violation of an ordinance, light felony, or a criminal offense the imposable penalty thereof does not exceed 6 months of imprisonment and/ or fine of P2,000 under RA 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 circumstances, in which case the court, in its discretion may allow his release on his own recognizance. 3. Where the accused has applied for probation pending resolution of the case but no bail was filed or the accused is incapable of filing one. 4. In case of youthful offender held for physical and mental examination, trial or appeal if he is unable to furnish bail and under

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

UNDER THE REVISED RULES ON SUMMARY PROCEDURE

circumstances envisage in PD 603 as amended. Espiritu v. Jovellanos AM No MTJ 97-1139 (1997) GR: NO bail XPNs: 1.When a warrant of arrest is issued for failure to appear when required by the court; 2.When the accused: a.is a recidivist; b.is a fugitive from justice; c.is charged with physical injuries; d.does not reside in the place where the violation of the law or the ordinance is committed; or he has no known residence.

7. INCREASE OR REDUCTION OF BAIL

Q: What happens if the bondsmen failed to do such requirements? A: A judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. Note: The 30 day period granted to the bondsmen to comply with the two requisites for the lifting of the order of forfeiture cannot be shortened by the court but may be extended for good cause shown.

Q: Distinguish Order of Forfeiture from Order of Cancellation. ORDER OF FORFEITURE Conditional and interlocutory. It is not appealable

Q: When may the court increase or reduce the amount of bail?

ORDER OF CANCELLATION Not independent of the order of forfeiture. It is a judgment ultimately determining the liability of the surety thereunder and therefore final. Execution may issue at once.

A: 1. 2.

After the accused is admitted to bail. Upon good cause

Q: When is bail cancelled? A: Bail is cancelled:

Q: What is the remedy if the bail is increased and the accused did not give the increased amount of bail within a reasonable time? A: When the amount of bail is increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. Note: Where the offense is bailable as a matter of right, the mere probability that the 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 the bail, provided such amount would not be excessive. (Sy Guan v. Amparo, 79 Phil 670)

8. FORFEITURE AND CANCELLATION OF BAIL Q: When is bail forfeited? A: If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen within 30 days from the failure of the accused to appear in person must: 1. 2.

PRODUCE the body of their principal or give the reason for non- production; and EXPLAIN why the accused did not appear before the court when required to do so

(Section 21, Rule 114)

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1.

Upon application of the bondsmen with due notice to the prosecutor, upon surrender of the accused or proof of his death; 2. Upon acquittal of the accused; 3. Upon dismissal of the case; or 4. Execution of judgment of conviction Without prejudice on any liability on the bail 9. APPLICATION FOR BAIL IS NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST OR IRREGULAR PRELIMINARY INVESTIGATION Q: Is the application to bail bar to any objections in illegal arrest or irregular preliminary investigation? A: An application for or admission to Bail shall NOT bar the accused: 1. 2. 3.

From challenging the validity of his arrest; The legality of the warrant issued thereof; From assailing the regularity of questioning the absence of a preliminary investigation of the charge against him.

PROVIDED that the accused raises them before entering his plea. NOTE: The court shall observe the matter as early as practicable, but not later than the start of the trial of the case.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 10. HOLD DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST Q: What is a Hold Departure Order? A: A Hold Departure Order or HDO is an order issued by the Secretary of Justice or the proper RTC commanding the Commissioner of the Bureau of Immigration to prevent the departure for abroad of Filipinos and/ or aliens named therein by including them in the Bureau’s Hold Departure List. (DOJ Department Order No. 17) Note: The proper court may issue a hold departure order or direct the Department of Foreign Affairs to cancel the passport of the accused. This is a case of a valid restriction on a person’s right to travel so that he may be dealt with in accordance with the law. (Silverio v. Court of Appeals GR No. 94284, April 8, 1991)

Q: Who may issue a Hold Departure Order? A: A hold departure order (HDO) may be issued either by: 1. The Regional Trial Court pursuant to SC Circular 39-97; or Note: SC Circular 39-97 dated June 19, 1997, "limits the authority to issue hold departure orders to the Regional Trial Courts. Considering that only the RTC is mentioned in said Circular and by applying the rule on legal hermeneutics of express mention implied exclusion, courts lower than the RTC — such as the MeTC, MTC, MTCC and MCTC — has no authority to issue hold departure orders in criminal cases. (A.M. No. 99-9-141MTCC November 25, 1999)

2. By the RTC sitting as a Family Court pursuant to A.M. No. 02-11-12-SC, Note: in which case, the court, motuproprio 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 child from the Philippines without the permission of the court while the petition for legal separation, annulment or declaration of nullity is going on.

3. By the Department of Justice pursuant to Department Order No. 41. Q: When may the RTC issue a Hold Departure Order? A: Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of

the Regional Trial Courts (SC Circular 39-97); upon proper motion of the party. Q: What is the effect of the acquittal of the accused or dismissal of the case to the hold departure order issued by the RTC? A: Whenever [a] the accused has been acquitted; or [b] the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The Court concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within twenty-four [24] hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal. Q: In what cases may the DOJ issue a Hold Departure Order? A: The Secretary of Justice may issue an HDO under any of the following instances: 1. Against an accused irrespective of nationality, in criminal case falling within the jurisdiction of courts below the RTCs; Note: If the case against the accused is pending trial, the application under oath of an interested party must be supported by: a) certified true copy of the complaint or information; and b) a certification from the Clerk of Court concerned that the criminal case is pending. If the accused has jumped bail or has become a fugitive of justice, the application under oath of an interested party must be supported by: a) a certified true copy of the complaint or information; b) a certified true copy of the warrant or order of arrest; and c) a certification from the Clerk of Court concerned that the warrant or order of arrest was returned unserved.

2. Against an alien whose presence is required either as a defendant, respondent or a witness in a civil or labor case pending litigation, or any case before an administrative agency; 3. Against any person motuproprio, or upon the request of the Head of a Department of the Government, head of a constitutional body or commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the legislature; when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 security, public safety or public health. (DOJ Department Circular No. 41). Q: What is the validity of an HDO issued by the DOJ? A: An HDO issued by the DOJ shall be valid for 5 years from the date of its issuance unless sooner terminated. (Section 4, DOJ Circular No. 41). Q: When may an HDO issued by the DOJ be lifted or cancelled? A: The HDO may be lifted under any of the following grounds: 1. When the validity of the HDO has already expired; 2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/ order of arrest has been recalled; 3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/ WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country. (Section 5, DOJ Department Order No. 41).

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 a WLO against any person, either motuproprioor upon request of any government agencies, including commissions, task forces or similar entities created by the Office of the President, pursuant to the “Anti- Trafficking of Persons Act of 2003” (RA 9208) and/ or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health. (Section 2, DOJ Department Order 41) Q: What is the validity of a WLO? A: A WLO issued shall be valid for sixty (60) days unless sooner terminated or extended, for a nonextendible period of not more than sixty (60) days. (Section 4, DOJ Department Order No. 41) Q: Where should permission to leave the country be filed? A: Permission to leave the country should be filed in the same court where the case is pending because they are in the best position to judge the propriety and implication of the same.(Santiago v. Vasquez, G.R. No. 99289-90, January 27, 1993) Q: What is the remedy against an HDO/ WLO?

Q: How about the HDO/WLO issued by the DOJ either motuproprio or upon request of government functionaries/ agencies, when may such be lifted? A: Any HDO/ WLO issued by the Secretary of Justice either motuproprio or upon request of government functionaries/ agencies, 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, may be lifted or recalled ANYTIME if the application is favorably indorsed by the Government functionaries/ offices who requested the issuance of the HDO/ WLO. (Section 5, DOJ Department Circular No. 41)

A: A WLO may be attacked by filing a motion for cancellation or by getting an Allow Departure Order from the DOJ or by filing a Motion to Lift Hold Departure Order. Q: What is an Allow Departure Order (ADO)? A: An Allow Departure Order is a directive that allows the traveler to leave the territorial jurisdiction of the Philippines. This is issued upon application to the Commissioner of Immigration and the appropriate government agency. (An outline of Philippine Immigration and Citizenship Laws, Volume I, Atty. Rolando P. Ledesma, page 34). Q: When is ADO issued?

Q: When may a Watch List Order (WLO) be issued? A: The Secretary of Justice may issue a WLO under any of the following circumstances: 1. Against the accused, irrespective of nationality in criminal cases pending trial before the RTC or before courts below the RTCs;

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A: Any person subject of an HDO/ WLO pursuant to Department Order No. 41, who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO upon submission of the following requirements:

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 1. Affidavit stating clearly the purpose, inclusive period of the intended travel, and undertaking to immediately report to the DOJ upon return; and

7.

2. Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/ WLO was based is pending or from the investigating prosecutor in charge of the subject case.

8. 9.

to have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf; to have speedy, impartial and public trial; and to appeal on all cases allowed by law and in the manner prescribed by law (Sec. 1).

Q: What does “the right to be heard” mean? Q: What is the remedy of a person who is not the same person whose name appears in the HDO/ WLO? A: Any person who is prevented from leaving the country because his/ her name appears to be the same as the one that appears in the HDO/ WLO may upon application under oath obtain a Certification to the effect that said person is not the same person whose name appears in the issued HDO/ WLO upon submission of the following requirements: 1. Affidavit of Denial; 2. Photocopy of the page of the passport bearing the personal details; 3. Latest clearance from the National Bureau of Investigation; and 4. Clearance from the court or appropriate government agency when applicable. G. RIGHTS OF THE ACCUSED Note: The rule enumerates the rights of a person accused of an offense which are both constitutional as well as statutory, save the right to appeal, which is purely statutory in character.

1. RIGHTS OF ACCUSED AT THE TRIAL Q: What are the rights of the accused at the trial? A: Right: 1. to be presumed innocent until the contrary is proved beyond reasonable doubt; 2. to be informed of the nature and the cause of the accusation against him; 3. to be present and defend in person and by counsel at every stage of the proceeding; 4. to testify as a witness in his own behalf but subject to cross- examination on matters covered by direct examination; 5. to exempt from being compelled to be a witness against himself (against selfincrimination); 6. to confront and cross examine the witnesses against him at the trial;

A: It means that the accused must be given the opportunity to present his case either by way of oral or verbal arguments, or by way of pleadings. PRESUMPTION OF INNOCENCE Q: What is the meaning of the right of presumption of innocence? A: The right means that the presumption must be overcome by evidence of guilt beyond reasonable doubt. Guilt beyond reasonable doubt means that there is moral certainty as to the guilt of the accused. Conviction should be based on the strength of the prosecution and not on the weakness of the defense. The significance of this is that accusation is not synonymous with guilt. Q: What are the exceptions to the presumption of innocence? A: 1.

2.

In cases of self-defense, the person invoking self defense is presumed guilty. In this case, a reverse trial will be held. The legislature may enact that when certain facts have been proved, they shall be prima facie evidence of the existence of guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the other is not an unreasonable and arbitrary experience (People v. Mingoa, G.R. No. L-5371, Mar. 26, 1953). E.g.: a. Unexpected flight of the accused b. Failure to explain possession of stolen property c. Failure to account funds and property of a public officer entrusted to him

Q: What is reasonable doubt? A: It is the doubt engendered by an investigation of the whole proof and an inability, after such

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty is not demanded by law to convict of any criminal charge but moral certainty is required as to every proposition of proof requisite to constitute the offense.

variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal (People v. Noque GR No. 175319, January 15, 2010).

Q: What is the equipoise rule? A: Where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused who must be acquitted. Q: What is a reverse trial? A: A reverse trial happens if the accused admits the killing but claims self-defense. He must first establish the elements of self-defense in order to overturn the presumption that he was guilty of the offense. RIGHT TO BE INFORMED Q: What is meant by the accused’s right to be informed? A: The right requires that the information should state the facts and circumstances constituting the crime charged in such a way that a person of common understanding may easily comprehend and be informed of what it is about. Q: May the right to be informed be waived?

RIGHT TO BE PRESENT DURING TRIAL Q: May the right to be present during the trial be waived? A: Yes, by: 1. a waiver pursuant to the stipulation set forth in his bail; 2. absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat; and 3. if the accused jumps bail, such shall be an automatic waiver of the right to be present on all subsequent trial dates until custody over him is regained (Sec. 1(c)). Note: The accused may be compelled to be present despite waiver for purposes of identification, but if the accused manifest in open court that he is indeed the accused, such shall also be considered a waiver thereof.

Q: What are the effects of waiver of the right to appear by the accused? A: 1. 2.

A: The right to be informed of the nature and cause of the accusation may not be waived.

3. Q: Noque was convicted for the crime of selling and possessing methamphetamine hydrochloride. On appeal, Noque claimed that his conviction violated his right to be informed of the nature and cause of the accusations against him since the charges in the Information are for selling and possessing methamphetamine hydrochloride but what was established and proven was the sale and possession of ephedrine. Is the appellant’s right to be informed of the nature and cause of accusation violated? A: NO. The Information filed was for the crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug; it is classified as the raw material of shabu. Under Sections 4 and 5, Rule 120 of the Rules of Court, 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. At any rate, a minor

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It is also a waiver to present evidence; Prosecution can present evidence despite the absence of the accused; and The court can decide even without accused’s evidence. RIGHT TO TESTIFY AS A WITNESS

Q: Distinguish an accused as a witness from an ordinary witness. A: Ordinary Witness May be compelled to take the witness stand and claim the right against selfincrimination as each question requiring an incriminating answer is asked

Accused as Witness May altogether refuse to take the witness stand and refuse to answer any and all questions. Note: If the accused testifies in his own behalf, then he may be crossexamined as any other witness. He may not, on cross examination, refuse to answer any question on the ground that the answer will give or the evidence that he will produce would have tendency to

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE him.

XPN: Immunity statutes such as:

incriminate him for the crime that he was charged.

1.

May be crossexamined as to any matter stated in the direct examination or connected therewith.

But he may refuse to answer any question incriminating him for an offense distinct from that which he is charged. May be cross examined but only on matters covered by his direct examination. Note: If the accused refuses to be cross-examined, the testimony of the accused who testifies on his own behalf will not be given weight and will have no probative value because the prosecution will not be able to test its credibility.

Forfeiture of illegally obtained wealth (R.A. 1379) 2. Bribery and graft cases (R.A. 749) (Herrera, Vol. IV, p. 563, 2007 ed.). Q: Distinguish use immunity from transactional immunity. A: Use Immunity

Transactional Immunity

Witness’ compelled testimony and the fruits thereof cannot be used in subsequent prosecution of a crime against him. Witness can still be prosecuted but the compelled testimony cannot be used against him

Witness immune from prosecution of a crime to which his compelled testimony relates. Witness cannot prosecuted at all

be

Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a State witness. What procedure will you take? Explain.

Q: Does the right against self-incrimination include the furnishing of a signature specimen?

A: As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the prosecutor for him to move for the discharge of my client as a State witness or the accused can apply as a State witness with the Department of Justice pursuant to R.A. 6981, the Witness Protection, Security and Benefit Act. The right to prosecute vests the prosecutor with a wide range of discretion, including what and whom to charge.

A: Yes, because writing is not a purely mechanical act for it involves the application of intelligence and attention. If such person is asked whether the writing in a document is his or not, and he says it is not, he deemed to have waived his right. On the other hand, if the accused simply refused to answer the question inquiring about the handwriting, no waiver of the right took place (Beltran v. Samson G.R. No. 32025, Sept. 23, 1929).

Q: What is the effect if the accused refuses to testify?

Note: The right against self-incrimination is available not only in criminal cases but also in government proceedings, civil, administrative proceedings where there is a penal sanction involved.

A: GR: The silence of the accused should not be used against him.

Q: Is the right of the accused against selfincrimination waivable?

XPN: 1. When the prosecution has already established a prima facie case, the accused must present proof to overturn the evidence; and 2. Defense of the accused is alibi and does not testify, the inference is that the alibi is not believable.

A: Yes. It may be waived by the failure of the accused to invoke the privilege after the incriminating question is asked and before his answer.

RIGHT AGAINST SELF-INCRIMINATION Q: What is the scope of the right against selfincrimination? A: GR: The right covers only testimonial compulsion and not the compulsion to produce real and physical evidence using the body of the accused.

RIGHT TO CROSS-EXAMINATION Q: What does the right of the accused to confront and cross-examine a witness against him contemplate? A: Confrontation is the act of setting a witness faceto-face with the accused so that the latter may make any objection he has to the witness which must take place in the court having jurisdiction to permit the privilege of cross-examination. In addition, the accused is entitled to have compulsory process issued to secure the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 attendance of witness and production of other evidence in his behalf [Sec. 1 (g)]. Note: The main purpose of this right to confrontation is to secure the opportunity of cross-examination and the secondary purpose is to enable the judge to observe the demeanor of witness.

Q: Does the right to confrontation cover witnesses who did not appear or was not presented at the trial?

4.

Note: There is no violation of the right where the delay is imputable to the accused.

Q: What are the remedies available to the accused when his right to speedy trial is violated? A: 1. 2.

A: No, the right to confrontation applies to witnesses who appear before the court; the witness must be present for the right to confrontation to attach. What is important is that the accused is given the right to cross-examine the witness presented (People v. Honrada, G.R. Nos. 112178-79, Apr. 21, 1995). Q: What is the rule with respect to the testimony of a witness who dies or becomes unavailable? A: If the other party had the opportunity to crossexamine the witness before he died or became unavailable, the testimony may be used as evidence. However, if the other party did not have the opportunity to cross-examine before the death or unavailability of the witness, the testimony will have no probative value. RIGHT TO COMPULSORY PROCESS Q: What is the right to compulsory process mean?

Prejudice to the accused resulting from the delay.

3. 4.

Ask for the trial of the case; Unreasonable delay of the trial of a criminal case as to make the detention of defendant illegal gives ground for habeas corpus as a remedy for obtaining release; Mandamus proceeding to compel the dismissal of the information; or Ask for the trial of the case and then move to dismiss (Gandicela v. Lutero, G.R. No. L-4069, Mar. 5, 1951).

Q: What is the rule regarding trial by publicity? A: The right of the accused to a fair trial is not incompatible with free press. Pervasive publicity is not per se prejudicial to the right to a fair trial. To warrant the finding of prejudicial publicity, there must be allegations and proof that judges have been unduly influenced, not simply that they might be due to the barrage of publicity (People v. Teehankee, G.R. Nos. 111206-08, Oct. 6, 1995). Q: Is the rule that the trial should be public absolute?

A: This refers to the right of the accused to have a subpoena and/or subpoena ducestecum issued in his behalf in order to compel the attendance of witnesses and the production of other evidence.

A: No. The court may bar the public in certain cases, such as when the evidence to be presented may be offensive to decency or public morals; or in rape cases, where the purpose of some persons in attending is merely to ogle at the parties.

Q: What is the effect if a witness refuses to testify when he is required?

RIGHT TO APPEAL

A: The Court should order the witness to give bail or order his arrest, if necessary. Failure to obey a subpoena amounts to contempt of court. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL Q: What are the facts to be considered to determine if the right to speedy trial has been violated?

A: The right to appeal from a judgment of conviction is fundamentally of statutory origin. It is not a matter of absolute right independently of constitutional or statutory provision allowing such appeal. Q: Can the right to appeal be waived? A:

A: 1. 2. 3.

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Q: What is the nature of the right to appeal?

Length of the delay; Reason for the delay; The accused’s assertion or non assertion of the right; and

GR: The right to appeal can be waived expressly or impliedly. XPN: Where the death penalty is imposed, such right cannot be waived as the review of the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE judgment by the CA is automatic and mandatory pursuant to Administrative Circular No. 20-2005 which is an order directing regional trial courts to directly forward to the Court of Appeals records of criminal cases which are subject of automatic review or regular appeals. Note: When the accused flees, after the case has been submitted to court for decision, he will be deemed to have waived his right to appeal from the judgment rendered against him (People v. AngGioc, G.R. No. L48547, Oct. 31, 1941).

RIGHT TO COUNSEL Republic Act No. 7438 Q: Distinguish the right to counsel during trial from right to counsel during custodial investigation? A: Right to counsel during trialmeans the right of the accused to an effectivecounsel. Counsel is not to prevent the accused from confessing but to defend the accused. On the other hand, right to counsel during custodial investigation requires the presence of competent and independent counsel who is preferably the choice of the accused. The reason for such right is that in custodial investigation, there is a danger that confessions can be exacted against the will of the accused since it is not done in public. Q: What are the requisites for a valid custodial investigation report? A: RA No. 7438 provides for the following requisites for a valid custodial investigation report: 1. The report shall be reduced to writing by the investigating officer; 2.If the person arrested or detained does not know how to read or write, it shall be read and adequately explained to him by his counsel or by the assisting counsel in the language or dialect known to such arrested or detained person. This is to be done before the report is signed. If this procedure is not done, the investigation report shall be null and void and of no effect whatsoever. Q: Is the statement signed by the accused admissible if during the investigation, the assisting lawyer leaves, or comes and goes? A: No. It is inadmissible because the lawyer should assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession (People v. Morial, G.R. No. 129295, Aug. 15, 2001).

Note: The right to counsel covers the period beginning from custodial investigation until rendition of judgment and even on appeal (People v. Serzo, Jr., G.R. No. 118435, June 20, 1997).

Q: May the right to counsel during trial be waived? A: Yes. It can be waived when the accused voluntarily submits himself to the jurisdiction of the court and proceeds with his defense. The accused may defend himself in person only if the court is convinced that he can properly protect his rights even without the assistance of counsel. The defendant cannot raise the question of his right to have an attorney for the first time on appeal. Q: May an accused defend himself without the assistance of counsel? A: Yes, but only when it sufficiently appears that he can properly protect his right without the assistance of counsel [Sec. 1(c)]. Q: What is the rule if the accused makes an extrajudicial confession? A: 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 supervisor, or priest or minister of the gospel as chosen by him; otherwise such extrajudicial confession shall be inadmissible as evidence in any proceeding (Sec. 2(d) RA 7438) Q: An affidavit was made by the accused without the presence of counsel during preliminary investigation, admitting the commission of a crime. When presented during trial as evidence, the accused objected claiming that there was a violation of his right to a competent and independent counsel. Is the accused correct? A: No. The constitutional right to a competent and independent counsel exists only in custodial interrogations, or in-custody interrogation of accused persons. A preliminary investigation is an inquiry or a proceeding 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. Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 under custodial investigation (People v. Ayson, G.R. No. L-28508-9, July 7, 1989). 2. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION Q: What is custodial investigation? A: Custodial Investigation is the stage “where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements” (People v. Sunga, 399 SCRA 624). Sec. 2(f) of RA 7438 expanded the meaning of custodial investigation. It shall include 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. Q: When do the rights in custodial investigation attach? A: The rights begin to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements (People v. Jose Ting LanUy, G.R. No. 157399, Nov. 17, 2005). It includes the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. Q: What is the importance of the right to counsel in custodial investigation? A: The importance of the right to counsel is so vital that under existing law, “in the absence of any 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 Revised Penal Code. (Section 3c RA 7438) The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting a confession. (People v. Duenas, Jr. 426 SCRA 666). Q: What are the rights of persons under Custodial Investigation?

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A: 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun; 10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence (People v. Mahinay, G.R. No. 122485, Feb. 1, 1999). Q: What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence? A: An admission of guilt during a custodial investigation is a confession. To be admissible in evidence, the confession must be voluntary, made with the assistance of competent and independent counsel, express and in writing. H. ARRAIGNMENT AND PLEA

b.specify the details desired. (Section 9, Rule 116)

b.Suspension of arraignment- Upon motion, the proper party may ask for the suspension of the arraignment in the following cases: 1. That 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. In such case, the court shall order his mental examination and, if necessary his confinement for such purpose; 2. That 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 of the Office of the President (Section 11, Rule 116) Note: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.

c. Motion to Quash – At any time before entering his plea, the accused may move to quash the complaint or information on any of the grounds under Section 3, Rule 117 in relation to Section 1 of the same rule; d. Challenge the validity of the arrest or legality of the warrant issued or assail the regularity or question the absence of preliminary investigation of the charge otherwise the objection is deemed waived.

1. ARRAIGNMENT AND PLEA, HOW MADE Q: Where is arraignment made? Q: What is arraignment? A: Arraignment is the proceeding in a criminal case, whose object is to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead, or to obtain from the accused his answer, in other words, his plea to the information. Note: Arraignment is indispensable as the means for bringing the accused into court and notifying him of the cause he has to meet. (Borja v. Mendoza, 77 SCRA 42)

Q: What are the options of the accused before arraignment and plea? A: Before arraignment and plea, the accused may avail of any of the following:

A: The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. (Section 1a, Rule 116) Q: How is arraignment made? A: Arraignment is made: 1. in open court where the complaint or information has been filed or assigned for trial; 2. by the judge or clerk of court; 3. By furnishing the accused with a copy of the complaint or information; 4. Reading it in a language or dialect known to the accused; 5. Asking accused whether he pleads guilty or not guilty. 6. Both arraignment and plea shall be made of record but failure to enter of record shall not affect the validity of the proceedings.

a. Bill of Particulars- The accused may, before arraignment, move for a bill of particulars to enable him to properly plead and prepare for trial.

Q: When is arraignment made?

Note: The motion shall: a. specify the alleged defects of the complaint or information, and shall

A: Under the Rules of Court, the arraignment shall be made within thirty (30) days from the date the court acquires jurisdiction over the person of the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 accused, unless a shorter period is provided by a special law or a Supreme Court circular. (Section 1g, Rule 116). Q: What are the instances when arraignment is held within a shorter period? A: 1. When an accused is under preventive detention, his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case (RA 8493 Speedy Trial Act) 2. Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay. 3. Cases under RA 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment. 4. Cases under the Dangerous Drugs Act. 5. Cases under SC AO 104-96 ie., heinous crimes, violations of the Intellectual Property Rights law, these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case. Q: What are the different rules on arraignment? A: 1. Trial in absentia may be conducted only after valid arraignment. 2. Accused must personally appear during arraignment and enter his plea (counsel cannot enter plea for accused) 3. Accused is presumed to have been validly arraigned in the absence of proof to the contrary. 4. Generally, judgment is void if accused has not been validly arraigned. 5. If accused went into trial without being arraigned, subsequent arraignment will cure the error provided that the accused was able to present evidence and cross examine the witnesses of the prosecution during trial. Note: If an information is amended in substance which changes the nature of the offense, arraignment on the amended information is MANDATORY, except if the amendment is only as to form. (Teehankee Jr. v. Madayag GR NO 103102, March 6, 1992)

Q: Is the presence of the accused required during arraignment? A: The accused must be present at the arraignment and personally enter his plea. (Section 1b, Rule 116)

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Q: Is the presence of the offended party required in arraignment? A: The private offended party shall be required to appear in the arraignment for the following purposes: a.plea bargaining; b. determination of civil liability ;and c. other matters requiring his presence. Note: in case the offended party fails 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. (Section 1f, Rule 116)

Q: Accused appellant assailed his conviction because he claimed that he was not properly arraigned since he was only arraigned after the case was submitted for decision. The absence of arraignment was not objected by the appellant; it is only upon his conviction that appellant raised the issue of absence of arraignment. May arraignment be made after a case has been submitted for decision? A: Yes. No protest was made when appellant was subsequently arraigned. The parties did not question the procedure undertaken by the trial court. The appellant’s rights were not prejudiced since he has actively participated in the hearings conducted (People v. Pangilinan 518 SCRA 358). Q: What is plea? A: It pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him. Q: What is the period to plea? A: 1. When the accused is under preventive detention: His case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint and the accused arraigned within 10 days from the date of the raffle. The pre-trial conference of his case shall be held within 10 days after arraignment; 2. When the accused is NOT under preventive detention: Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash, or for bill of particulars, or other

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE causes justifying suspension of the arraignment, shall be excluded in computing the period.

2. WHEN SHOULD PLEA OF NOT GUILTY BE ENTERED

Q: What is the effect of a plea of guilty?

Q: When should a plea of not guilty be entered?

A: A plea of guilty is a judicial confession of guilt (People v. Comendador GR No. L-38000, September 19, 1980). It is an unconditional plea of guilt admits of the crime and all the attendant circumstances alleged in the information including the allegations of conspiracy and warrants of judgment of conviction without need of further evidence

A: 1. When the accused so pleaded; 2. When he refuses to plead; 3. Where in admitting the act charged he sets up matters of defense or with lawful justification; 4. When he enters a conditional plea of guilty; 5. Where after a plea of guilty he introduces evidence of self- defense or other exculpatory circumstances; 6. When the plea is indefinite or ambiguous.

XPN: 1. Where the plea of guilt was compelled by violence or intimidation; 2. When the accused did not fully understand the meaning and consequences of his plea; 3. Where the information is insufficient to sustain conviction of the offense charged; 4. Where the information does not charge an offense, any conviction thereunder being void;’ 5. Where the court has no jurisdiction. XPN to the XPN: If what the accused would prove is an exempting circumstance, it would amount to a withdrawal of his plea of not guilty. Note: For non-capital offenses, the reception of evidence is merely discretionary on the part of the court. If the information or complaint is sufficient for the judge to render judgment on a non-capital offense, he may do so. But if the case involves a capital offense, the reception of evidence to prove the guilt and degree of culpability of the accused is mandatory.

Q: May the plea of guilty be collaterally attacked?

3. WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE Q: What is plea bargaining? A: Plea bargaining in criminal cases 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 than that for the graver charge (Daan v. Sandiganbayan GR No. 163972-77, March 28, 2008). Q: May the accused enter a plea of guilty to a lower offense? A: Yes: 1.

A: GR:No. A plea of guilty entered by one who is fully aware of the direct consequences, including the actual value of any commitments made to him by court, the prosecutor or his own counsel must stand.

2.

XPN: It was induced by: 1. 2. 3.

threats; misrepresentation; or improper promises as it has no proper relationship to the prosecutor’s business (People v. Villasco, G.R. No. L-4706, July 24, 1951).

Note: It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.

During arraignment a. If the offended party is present, the latter must consent with the prosecutor consented plea; and b. That the lesser offense is necessarily included in the offense charged. After arraignmentbut beforetrial provided the following requisites are present: a. The plea of guilty is withdrawn; b. The plea of not guilty and the withdrawal of the previous guilty plea shall be made before trial; c. The lesser offense is necessarily included in the offense charged; and d. The plea must have the consent of the prosecutor and the offended party (Section 2, Rule 116) Note: No amendment of complaint or information is necessary (Sec. 2).

3.

After prosecution rests – allowed only when the prosecution does not have

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 sufficient evidence to establish guilt for the crime charged. 4.

2.

ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE, WHAT COURT SHOULD DO

3.

Q: What is the duty of the court after the accused pleads guilty to a capital offense? A: When the accused pleads guilty to a capital offense, the court shall: 1. Conduct a searching inquiry into the: a. Voluntariness of the plea and b. Full comprehension of the consequences of the plea; 2. Require the prosecution to prove guilt and the precise degree of his culpability; 3. Ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. However, the defendant after pleading guilty may not present evidence as would exonerate him completely from criminal liability such as proof of self-defense.

6. IMPROVIDENT PLEA Q: What is an improvident plea? A: It is a plea without information as to all the circumstances affecting it. It is based upon a mistaken assumption or misleading information or advice. Q: Enumerate the instances of improvident plea. A: 1. 2. 3.

Note: This procedure is mandatory, and a judge who fails to observe it commits grave abuse of discretion.

Q: Why is the presentation of evidence required after the plea of guilty? A: To preclude any room for reasonable doubt in the mind of either the trial court or of the Supreme Court, on review as to the possibility that there might have been misunderstanding on the part of the accused as to the nature of the charges to which he pleaded guilty; and to ascertain the circumstances attendant to the commission of the crime which justify or require the exercise of greater or lesser degree of severity in the imposition of prescribed penalties. (People v. Basa, 51 SCRA 317)

The judge must convince himself that there exists a rational basis for finding of guilt based on accused’s testimony Inform the accused of the exact length of imprisonment and the certainty that he will serve it in a national penitentiary

4. 5.

Plea of guilty was compelled by violence or intimidation; The accused did not fully understand the meaning and consequences of his plea; Insufficient information to sustain conviction of the offense charged; Information does not charge an offense; Court has no jurisdiction.

Q: When may an improvident plea be withdrawn? A: The court may permit an improvident plea of guilty to be withdrawn at any time before the judgment of conviction becomes final and be substituted by a plea of not guilty. Note: The withdrawal of a plea of guilty is not a matter of right to the accused but addressed to the sound discretion to the trial court (Sec. 5).

Q: What is the effect of such withdrawal?

5. SEARCHING INQUIRY

A: The court shall set aside the judgment of conviction and re-open the case for new trial.

Q: What are the objectives of a searching inquiry?

7. GROUNDS FOR SUSPENSION OF ARRAIGNMENT

A: To determine the voluntariness of the plea and whether the accused understood fully the consequence of his plea.

Q: May arraignment be suspended?

Q: What is the meaning of the duty of the judge to conduct a “searching inquiry”? (elements of searching inquiry) A: In all cases, the judge must convince himself: 1. The judge must convince himself that the accused is entering the plea voluntarily and intelligently;

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A: Yes, upon motion by the proper party on the following grounds: 1.

2. 3.

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; There exists a valid prejudicial question; A petition for review of the resolution of the prosecutor is pending at the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Department of Justice or the Office of the President (Sec. 11); provided that the period of suspension shall not exceed 60 days counted from the filing of the petition; 4. There are pending incidents such as: a. Motion to Quash b. Motion for Inhibition c. Motion for Bill of Particulars

A: The motion to quash must be: 1. in writing; 2. signed by the accused or his counsel; and 3. specify the factual and legal grounds on which it is based.

Note: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office (Sec. 11).

Q: What are the grounds for a motion to quash the complaint or information?

Note: The court shall not consider any other ground other than those specifically stated in the motion to quash except lack of jurisdiction over the offense charged (Sec. 2).

A: I. MOTION TO QUASH

1.

Q: What is motion to quash?

2.

A: Itis a special pleading filed by the defendant before entering his plea, which hypothetically admits the truth of the facts spelled out in the complaint or information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings.

3.

Q: When may a motion to quash an information or complaint be filed? A: At any time before entering his plea, the accused may move to quash the information or complaint (Sec. 1, Rule 117).

4. 5. 6.

7. 8.

Note: The court is not authorized to motuproprio initiate a motion to quash by issuing an order requiring an explanation why the information should not be quashed. The court has discretion to dismiss the case if the info is not sufficient or on any ground provided by law, or to dismiss the info for a different one.

Q: May a motion to quash be filed after the plea of the accused? A: GR: No motion to quash can be entertained after accused enters his plea. XPN: On the following grounds: 1. Lack of jurisdiction over the offense charged; 2. The facts alleged charged no offense; 3. That the offense or the penalty has prescribed; or 4. Double jeopardy. 1. GROUNDS Q: What are the requirements for a valid motion to quash?

That the facts charged do not constitute an offense; That the court trying the case has no jurisdiction over the offense charged; That the court has no jurisdiction over the person of the accused; That the officer who filed the information had no authority to do so; That the information does not conform substantially to the prescribed form; That more than one offense is charged except when a single punishment for various offense is prescribed by law; That the criminal action or liability has been extinguished; That it contains various averments which if true would constitute legal excuse or justification; Note: Only exempting circumstances constitute a legal excuse or justification. Justifying circumstances such as self-defense must be proven.

9.

That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (double jeopardy) (Sec. 3, Rule 117).

Note: Matters of defense are generally not a ground for a motion to quash. They should be presented at the trial

Q: Can lack of preliminary investigation be a ground for a motion to quash? A: No, the grounds under Sec. 3, Rule 117 are exclusive in character. Accordingly, it was held that lack of preliminary investigation is not a ground for a motion to quash, not only because it is not stated by the rule as one of the grounds, but also because

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 it does not impair the validity of the information, render it defective or affect the jurisdiction of the court over the case (People v. Yutila, G.R. No. L34332, Jan. 27, 1981). Q: Can the accused move to quash on the ground that he was denied due process?

Congress. It is a private act which must be pleaded and proved by the person pardoned because the courts take no notice of it.

It is a public act which the courts have to take judicial notice of.

Granted to one after conviction.

Granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.

Relieves the offender from the consequences of the offense of which he is convicted. It only serves as a relief from the punishment but it does not restore the political rights of the person, unless it is expressly provided for in the pardon.

Abolishes and puts into oblivion the offense itself. It is as though the offense was never committed.

A: No. Denial of due process is not one of the grounds for a motion to quash. Q: Can the court grant a motion to quash filed by the accused on the following grounds: that the court lacked jurisdiction over the person of the accused and that the complaint charged more than one offense? A: No. A motion to quash on the ground of lack of jurisdiction over the person of the accused must be based only on this ground. If other grounds are included, there is a waiver, and the accused is deemed to have submitted himself to the jurisdiction of the court. Q: What are the grounds for extinction of criminal liability? A: Under Article 89 of the Revised Penal Code, it is provided that criminal liability is totally extinguished: 1. By the death of the convict, as to personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment; 2. By service of the sentence; 3. By amnesty, which completely extinguish the penalty and all its effects; 4. By absolute pardon; 5. By prescription of the crime; 6. By prescription of the penalty; and 7. By the marriage of the offended woman, as provided in Article 344 of the Revised Penal Code. Q: Is the death of the offended party a ground for the dismissal of the case? A: No, the death of the offended party before final conviction will not abate prosecution where the offense charged is one against the State involving peace and order as well as in private crimes (People v. Misola, G.R. No. L-3606, Dec. 29, 1950). Q: Distinguish pardon from amnesty. A: Pardon Granted by the Chief Executive.

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Amnesty Proclaimed by the President, but it has to be with the concurrence of

Q: In cases of violation of special laws, when will the prescriptive period begin to run? A: Violation of special law is malumprohibitum, hence, the applicable statute requires that if violation of special law is not known at the time, the prescriptive period begins to run only from the discovery thereof, which includes discovery of the unlawful nature of the constitutive acts which requires the evidence to be shown. (People v. Duque, G.R. No. 100285, Aug. 18, 1992) Note: Where the last day of the prescriptive period for filing an information is a Sunday or legal holiday, the information can no longer be filed on the next working day. The remedy is for the fiscal or prosecution to file the information on the last working day before the criminal offense prescribes (Yapdiangco v. Buencamino, G.R. No. L-31442, June 24, 1983).

Q: What is nolleprosequi? A: It is a Latin term for “we shall no longer prosecute.” It is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of its judicial discretion. It partakes of a non-user or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. It is not an

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense. Thus, it can be refiled(Galvez v. CA,G.R. No. 120715, Mar. 29, 1996).

XPNs: Instances where a motion to quash may be filed AFTER plea: 1. Failure to charge an offense; 2. Lack of jurisdiction over the offense charged; 3. Extinction of the offense or penalty; 4. The defendant would be placed in double jeopardy.

Q: Is nolleprosequi the same as quashal? A: No,although both have the same result – the dismissal of the case. A nolleprosequi is initiated by the prosecutor while a quashal is upon motion to quash filed by the accused. Q: What is the effect of failure to move to quash or failure to allege a ground?

Note: Right to file a motion to quash belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motuproprio initiate a motion to quash.

3. EFFECTS OF SUSTAINING THE MOTION TO QUASH

A: GR: It shall be deemed a waiver of any objections. XPN: Grounds based on: 1. the facts charged do not constitute an offense; 2. the court trying the case has no jurisdiction over the offense charged; 3. criminal liability has been extinguished; and 4. that the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (Sec. 9).

Q: What are the effects of granting a motion to quash? A: 1.

2. 2. DISTINGUISH FROM DEMURRER TO EVIDENCE Q: Distinguish Motion to Quash from Demurrer to Evidence A: MOTION TO QUASH Filed before the defendant enters his plea Does not go into the merits of the case but is anchored on matters not directly related to the question of guilt or innocence of the accused Governed by Rule 117 of the Rules on Criminal Procedure

DEMURRER TO EVIDENCE Filed after the prosecution has rested its case Based upon the inadequacy of the evidence adduced by the prosecution in support of the accusation Governed by Rule 119 of the Rules on Criminal Procedure

Q: When may the accused move to quash the complaint or information? A: GR: The accused may move to quash the complaint or information at any time BEFORE entering his plea.

If an order sustaining the motion to quash is made: a. The court may order that another complaint or information be filed except on the ground of double jeopardy and extinguishment of criminal liability; and b. If the accused is in custody he shall not be discharged unless admitted to bail; If no order is made or if having made, no information is filed within the time specified in the order or within such time as the court may allow for good cause, the accused if in custody shall be discharged unless he is in custody for another charge (Sec. 5, Rule 117).

Q: Is the order granting the motion to quash appealable? A: Yes, because the order to that effect is a final order, and not merely interlocutory. The accused would not be placed in double jeopardy because the accused has not been arraigned yet and the dismissal was obtained with his expressed consent. Q: Is the order denying the motion to quash appealable? A: No. It is interlocutory and not appealable. Certiorari and prohibition are not the correct remedies against an order denying a motion to quash. The defendant should instead go to trial and raise the special defense he had invoked in his motion. And if after trial on the merits, an adverse decision is rendered, remedy is to appeal in the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 manner authorized by law (Bulaong v. CA, G.R. No. 78555, Jan. 30, 1990). Q: What is the procedure if the motion to quash is denied?

otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249). Q: When does the first jeopardy attach?

A: 1. The accused should plead; 2. Accused should go to trial without prejudice to the special defenses he invoked in the motion; 3. Appeal from the judgment of conviction, if any, and interpose the denial of the motion as an error

A:

Q: May an order denying a motion to quash appealable?

Q: When does the second jeopardy attach?

1. 2. 3. 4.

Competent Court Valid jurisdiction Accused was arraigned Accused pleaded

A: A: No. An order denying the motion to quash is INTERLOCUTORY and NOT APPEALABLE. Appeal in due time as the proper remedy implies a previous conviction as a result of a trial on the merits of the case and does not apply to an interlocutory order denying a motion to quash. (Acharon v. Purisima, GR No. 23731, February 26, 1965) 4. EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION TO QUASH IS NOT A BAR TO ANOTHER PROSECUTION Q: Is an order granting a motion to quash a bar to another prosecution? A: GR: An order sustaining the motion to quash is not a bar to another prosecution for the same offense. XPN: 1. Double jeopardy; or 2. Criminal liability is extinguished (Sec. 6). 5. DOUBLE JEOPARDY Q: What is double jeopardy? A: It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. Q: What are the elements of double jeopardy? A: 1. 2. 3. 4.

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A valid complaint or information A competent court The defendant pleaded to the charge The defendant was acquitted or convicted or the case against him was dismissed or

1. 2. 3. 4.

When the accused was acquitted; When there is final conviction; Dismissal on the merits Dismissal without express consent

Q: What is the effect of double jeopardy on the criminal and civil aspects of the case? A: When double jeopardy exists, “the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information (Section 7, Rule 117). The offended party and the accused may appeal the civil aspect of the case because the concept of double jeopardy evidently has reference only to the criminal case and has no effect on the civil liability of the accused (Riano, Criminal Procedure 2011 p. 475) Note: A judgment of acquittal is final and is no longer reviewable, unless the trial court acted with grave abuse of discretion or when there is mistrial.

Q: Is the concept of double jeopardy applicable to administrative cases? A: NO. The rule on double jeopardy does not apply to a controversy where one is an administrative case and the other is criminal in nature (Riano, Criminal Procedure 2011 p. 487 citing Icasiano v. Sandiganbayan, 209 SCRA 377). Q: As a result of vehicular mishap, petitioner was charged before the MTC of two separate offenses in two informations: a. reckless imprudence resulting in slight physical injuries; and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE b. reckless imprudence resulting in homicide and damage to property for the death of the husband of the respondent and damage to the vehicle. Petitioner pleaded guilty to the first information and was punished only be public censure. Invoking such conviction petitioner now moves for the quashal of the other information on the ground of double jeopardy. Does double jeopardy apply to quasi offenses?

is necessarily included in the first offense or an attempt or frustration thereof. Q: What are the exceptions to the identity rule? A: 1.

2. A: Yes. The two charges arose from the same facts and were prosecuted under the same provision of the Revised Penal Code, namely Article 365. The doctrine is that reckless imprudence under Art. 365 is a single quasi- offense by itself and not merely a means to commit other crimes. Hence, conviction or acquittal of such quasi offense bars subsequent prosecution for the same quasi offense, regardless of its various resulting acts (Ivler v. Modesto- San Pedro, GR No. 172716, November 17, 2010)

3.

4.

Note: Reason and precedent both coincide in that

once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. (People v. Buan, GR No. L-15974, March 29, 1968) Q: Distinguish dismissal from acquittal. A: Dismissal Does not decide on merits, does determine defendant’s guilt innocence Double jeopardy will always attach

the not the or not

Acquittal Always based on the merits. Defendant is acquitted because guilt was not proven beyond reasonable doubt Double jeopardy always attaches

Q: What is the identity rule? A: There is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense includes or

The graver offense developed due to supervening facts arising out of the same act or omission constituting the former charge. The facts constituting the graver offense became known or were discovered only after a plea was entered in the former complaint or information. The plea of guilty to a lesser offense was made without the consent of the prosecutor and the offended party (Sec. 7) The second offense was not in existence at the time of the first prosecution for the simple reason that in such case, there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent (Melo v. People, 85 Phil 766).

Note: In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.

Q: What are the instances wherein dismissal of the case is tantamount to an acquittal? A: 1. 2.

Insufficiency of evidence of the prosecution (demurrer to evidence). Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent).

Q: What is the doctrine of supervening fact? A: If, after the first prosecution, a new fact supervenes on which the defendant may be held liable, altering the character of the crime and giving rise to a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense. Q: What are the rules regarding the application of double jeopardy on State witnesses? A: An order discharging an accused as a State witness amounts to an acquittal, hence double jeopardy will apply. However, if he fails or refuses to testify against his co-accused in accordance with his sworn statement, he may be prosecuted again.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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provided by special laws or circulars of the Supreme Court (Sec. 1, Rule 118).

Q: What is the rule on provisional dismissal of a case?

Note: When the accused is under preventive detention, wherein his case shall be raffled and records transmitted within 3 days from the filing of the complaint or information. The accused shall be arraigned within 10 days from the date of the raffle [Sec. 1(d), Rule 116]. Pre-trial in criminal cases is mandatory.

A: GR: Where the case was dismissed PROVISIONALLY with the consent of the accused, he CANNOT invoke double jeopardy in another prosecution therefore OR where the case was reinstated on a motion for reconsideration by the prosecution. XPNs: Where the dismissal was actually an acquittal based on:

Q: Give three distinctions between a pre-trial in a criminal case and a pre-trial in a civil case. A: Pre-trial in Civil Cases

1. Lack or insufficiency of the evidence 2. Denial of the right to speedy trial hence even if the accused gave his express consent to such dismissal, such consent would be immaterial as such dismissal is actually an acquittal. Q: What are the requisites for provisional dismissal? A: 1. 2. 3.

Consent of the prosecutor; Consent of the accused; and Notice to the offended party (Sec. 8).

Note: If a case is provisionally dismissed, the failure to revive or reinstate the case within the periods set by law will make the dismissal permanent.

The presence of the defendant is required unless he is duly represented at the pretrial conference by his counsel with the requisite authority to enter into a compromise agreement. Failing in either of which, the case shall proceed as if the defendant has been declared in default.

Q: What is the time bar rule? Explain. A: It provides that the provisional dismissal of a case shall become permanent without the case having been revived in the following periods: 1. 1 year after issuance of the order of provisional dismissal – for offenses punishable by imprisonment not exceeding 6 years or a fine of any amount, or both; and 2. 2 years after issuance of the order of provisional dismissal – with respect to offenses punishable by imprisonment of more than 6 years (Sec. 8). J. PRE-TRIAL 1. MATTERS TO BE CONSIDERED DURING PRETRIAL Q: When is pre-trial held? A: After arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused unless a shorter period is

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The presence of the plaintiff is required unless excused therefrom for valid cause or if he is represented therein by a person fully authorized in writing to perform the acts specified in Sec. 4, Rule 18. Absent such justification, the case may be dismissed with or without prejudice.

Pre-trial in Criminal Cases The accused is merely required to sign the written agreement arrived at in the pre-trial conference, if he is in conformity therewith. Unless otherwise required by the court, his presence therefore is not indispensable. Note: This is aside from the consideration that the accused may waive his presence at all stages of the criminal action, except at the arraignment, promulgation of judgment or when required to appear for identification. The presence of the private offended party is not required. Instead, he is priorly required to appear at the arraignment of the accused for purpose of plea bargaining, determination of civil liability and other matters requiring his presence. Should he fail to appear therein and the accused offers to plead guilty to a lesser offense necessarily included in the offense charged, the accused may be allowed to do so with the conformity of the trial prosecutor alone.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE

A pre-trial brief is required with the particulars and the sanctions provided by Sec. 6, Rule 18.

The filing of a pre-trial brief is not required. It only requires attendance at a pre-trial conference to consider the matters stated in Sec. 1, Rule 118. (1997 Bar Question)

Q: What must the order for pre-trial conference contain? A: It must contain orders: 1. Requiring the private offended party to appear thereat for purposes of pleabargaining and for other matters requiring his presence; 2. Referring the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three (3) days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and 3. 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 Philippine Mediation Center unit for purposes of mediation if available (A.M. No. 03-1-09-SC).

5.

6.

Modification of the order of the trial if one of the accused admits the charge but interposes a lawful defense (reverse trial); and Such other matters as will promote a fair and expeditious trial of the civil and criminal aspects of the case (Sec. 1).

Note: During the preliminary conference, the branch clerk of court shall assist the parties in reaching a settlement of the civil aspect of the case, mark the documents to be presented as exhibits and copies thereof attached to the records after comparison, ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits and consider such other matters as may aid in the prompt disposition of the case. The proceedings during the preliminary conference shall be recorded in the minutes of preliminary conference to be signed by both parties and counsel. The minutes of preliminary conference and the exhibits shall be attached by the branch clerk of court to the case record before the pre-trial (A.M. No. 03-1-09-SC).

Q: What is plea bargaining? A: Plea bargaining is the process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multicount indictment in return for a lighter sentence than that for the graver charge.

Q: What is the form of a valid pre-trial agreement?

Q: When is plea bargaining not applicable?

A: The pre-trial agreement must be in writing and signed by both the accused and his counsel. If the required form is not observed, the pre-trial agreement cannot be used against the accused (Sec. 2, Rule 118).

A: Violations of the Dangerous Drugs Act regardless of the imposable penalty.

Note: The agreements covering the matters in the pretrial conference shall be approved by the court.

A: The court shall: 1. Adopt the minutes of preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents and list object and testimonial evidence; 2. Scrutinize every allegation of the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation and other documents identified and marked as exhibits in

Q: What are the matters considered during pretrial? A: 1. 2. 3. 4.

Plea bargaining; Stipulation of facts; Marking for identification of evidence of parties; Waiver of objections to admissibility of evidence;

Q: What shall the court do if the plea bargaining fails?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. 4.

5.

6.

determining farther admissions of facts, documents and in particular as to the following: a. The identity of the accused; b. Court’s territorial jurisdiction relative to the offense/s charged; c. Qualification of expert witness; d. Amount of damages; e. Genuineness and due execution of documents; f. The cause of death or injury, in proper cases; g. Adoption of any evidence presented during the preliminary investigation; h. Disclosure of defenses of alibi, insanity, self-defense, exercise of public authority and justifying or exempting circumstances; and i. Such other matters that would limit the facts in issue. Define factual and legal issues; Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision and use the time frame for each stage in setting the trial dates; Require the parties to submit to the Branch COC the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and Consider modification of order of trial if the accused admits the charge but interposes a lawful defense (A.M. No. 031-09-SC).

3. PRE-TRIAL AGREEMENT Q: What is pre- trial agreement? A: All agreements or admissions made or entered into during the pre- trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used un evidence against the accused. Q: What are the requisites before a pre- trial agreement may be used as evidence? A: 1. They are reduced to writing; 2. The pre-trial agreement is signed by the accused and his counsel 4.

NON- APPEARANCE DURING PRE-TRIAL

Q: What is the effect of non-appearance of counsel for the accused or the prosecutor during the pretrial without valid justification? A: The court may impose proper sanctions or penalties in the form of reprimand, fines or imprisonment if he does not offer an acceptable excuse for his lack of cooperation (Sec. 3, Rule 118). Note: These sanctions are not applicable on the accused, because to include him among the mandatory parties to appear might violate his constitutional right to remain silent.

5. PRE-TRIAL ORDER Q: What is pre-trial order?

2. WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED

A: It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference. Such order binds the parties and limits the trial to those matters not disposed of (Sec. 4).

Q: What is the effect if the prosecution and the offended party agree to the plea offered by the accused?

Q: When shall the trial judge issue a pre-trial order and what are its contents?

A: The court shall: 1. issue an order which contains the plea bargaining arrived at; 2. proceed to receive evidence on the civil aspect of the case; and 3. render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence (A.M. No. 03-1-09-SC).

A: It must be issued within ten (10) days after the termination of the pre-trial. It shall set forth the following: 1. Actions taken during the pre-trial conference; 2. Facts stipulated; 3. Admissions made; 4. Evidence marked; and 5. Number of witnesses to be presented and the schedule of trial (Sec. 4).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 6. REFERRAL FOR SOME CASES FOR COURT ANNEXED MEDIATION AND JUDICIAL DISPUTE RESOLUTION (A·M. No, 11-1-6-SC-PHILJA) Q: What is the purpose of Court Annexed Mediation and Judicial Dispute Resolution? A: The diversion of pending court cases both to Court-Annexed Mediation (CAM) and to Judicial Dispute Resolution(JDR) is plainly intended to put an end to pending litigationthrough a compromise agreement of the parties and therebyhelp solve the ever-pressing problem of court docket congestion. It is also intended to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285), to wit: “to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangement to resolve disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and de-clog court dockets.” Q: What are the three stages of diversion of cases to Court Annexed Mediation and Judicial Dispute Resolution? A: 1.The first stage is the Court-Annexed Mediation (CAM) where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators. 2. Upon failing to secure a settlement of the dispute during the first stage, a second attempt is made at the JDR stage. There, the JDR judge sequentially becomes a mediatorconciliator- early neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt, the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will try the unsettled case. The trial judge shall continue with the pre-trial proper and, thereafter, proceed to try and decide the case. 3. The third stage is during the appeal where covered cases are referred to the PMC-Appeals Court Mediation (ACM) unit for mediation. Q: What are the cases covered by Court Annexed Mediation and Judicial Dispute Resolution? A: The following cases shall be 1) referred to CourtAnnexed Mediation (CAM) and 2) be the subject of Judicial Dispute Resolution (JDR) proceedings:

1. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of B.P. 22, except those which by law may not be compromised; 2. Special proceedings for the settlement of estates; 3. All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the PangkatngTagapagkasundounder the Revised KatarungangPambarangay Law; 4. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code; 5. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonmentwhere the offended party is a private person; 6. The civil aspect of estafa, theft and libel; 7. All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980; 8. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (2) of the Judiciary Reorganization Act of 1980; (9) All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first levelcourts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; 13 and (10) All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to thefirst level courts under Section 35 of the Judiciary Reorganization Act of 1980. Q: What are those cases which cannot be referred to Court Annexed Mediation and Judicial Dispute Resolution? A: The following cases shall not be referred to CAM and JDR: 1. Civil cases which by law cannot be compromised (Article 2035, New Civil Code); 2. Other criminal cases not covered under paragraphs 3 to 6 above; 3. Habeas Corpus petitions; 4. All cases under Republic Act No. 9262 (Violence against Women and Children); and 5. Cases with pending application for Restraining Orders/Preliminary Injunctions. However, in cases covered under 1, 4 and 5 where the parties inform the court that they have agreed to undergo mediation on some aspects thereof, e.g., custody of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 minor children, separation of property, or support pendentelite, the court shall refer them to mediation. Q: What is the duration of mediation in the Philippine Mediation Center? A: The Mediator shall have a period of not exceeding thirty (30) days to complete the mediation process. Such period shall be computed from the date when the parties first appeared for the initial conference as stated in the Order to appear. An extended period of another thirty (30) days may be granted bythe court, upon motion filed by the Mediator, with the conformity of the parties.

applications. During the pre-trial stage, the judge refers the case to CAM, but if the parties do not settle at CAM, the case will be raffled to another branch for JDR. If the parties do not settle at JDR, the case will be returned to the branch that ruled on the applications for the pre-trial proper and up to judgment.

Q: What is the effect of the referral of the case to CAM and JDR?

2. SINGLE SALA COURT- Unless otherwise agreed upon as provided , the JDR proceedings will be conducted by the judge of the pair court, if any, otherwise, by the judge of the nearest court as determined by the concerned Executive Judge. The JDR proceedings shall be conducted at the station where the case was originally filed. The result of the JDR proceedings shall be referred to the court of origin for appropriate action, e.g. approval of the compromise agreement, trial, etc.

A: The period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings.

Notwithstanding the foregoing, before the commencement of the JDR proceedings, the parties may file a joint written motion requesting that the court of origin conduct the JDR proceedings and trial.

Q: What is the procedure after the parties reached a settlement?

3. FAMILY COURTS- Unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as a family court, shall be conducted by a judge of another branch through raffle. However, if there is another family court in the same area, the family court to whom the case was originally raffled shall conduct JDR proceedings and if no settlement is reached, the other family court shall conduct the pre-trial proper and trial.

A: If full settlement of the dispute is reached, the parties, assisted by their respective counsels, shall draft the compromise agreement which shall be submitted to the court for judgment upon compromise or other appropriate action. Where compliance is forthwith made, the parties shall instead submit a satisfaction of claims or a mutual withdrawal of the case and, thereafter, the court shall enter an order dismissing the case. If partial settlement is reached, the parties shall, with the assistance of counsel, submit the terms thereof for the appropriate action of the court, without waiting for resolution of the unsettled part. In relation to the unsettled part of the dispute, the court shall proceed to conduct JDR proceedings in accordance withPART THREE where JDR is available. Q: What is the remedy if the case is not resolved during JDR? A: 1. MULTIPLE SALA COURT- If the case is not resolved during the JDR, the case shall be raffled to another branch for the pre- trial proper up to judgement. For cases with pending applications for restraining orders/preliminary injunctions, the judge to whom the case was raffled shall rule on the said

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Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the family court to which the case was originally raffled shall conduct the JDR proceedings and trial. Despite the non-mediatable nature of the principal case, like annulment of marriage, other issues such as custody of children, support, visitation, property relations and guardianship, may be referred to CAM and JDR to limit the issues for trial. 4. COMMERCIAL, INTELLECT PROPERTY AND ENVIRONMENTAL COURTS- Unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as commercial/intellectual property/environmental court, hereafter referred to as special court, shall be conducted by another judge through raffle and not by the judge of the special court. Where settlement is not reached, the judge of the special court shall be the trial judge. Any incident or motion filed before the pre-trial

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE stage shall be dealt with by the special court that shall refer the case to CAM.

corpus(Montilla v. Arellano, G.R. No. 123872, Jan. 30, 1998).

Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the special courts to which the case was originally raffled shall conduct the JDR proceedings and trial.

Q: What is a hearing?

Q: May a case be referred to JDR even during trial? A: YES. Cases may be referred to JDR even during the trial stage upon written motion of one or both parties indicating willingness to discuss a possible compromise. If the motion is granted, the trial shall be suspended and the case referred to JDR, which shall be conducted by another judge through raffle in multiple sala courts. Q: What is the duty of the court if settlement is reached during the JDR? A: If settlement is reached during JDR, the JDR court shall take appropriate action thereon, i.e. approval/disapproval of the compromise agreement. If settlement is not reached at JDR, the case shall be returned to the referring court for continuation of trial. In single sala courts, the JDR shall be conducted by the nearest court (or pair court, if any) regardless of the level of the latter court. The result of the JDR proceedings shall be referred to the court of origin for appropriate action, e.g. approval of the compromise agreement, trial, etc. The parties may, by joint written motion, despite confidential information that may be divulged during JDR proceedings, file a request that their case be not transferred to other courts for JDR and that they agree to have the trial judge continue the trial should the case not be settled through JDR.

A: Hearing is not confined to trial, but embraces several stages of litigation including the pre- trial stage. A hearing does not necessarily imply the presentation of oral or documentary evidence in open court but that the parties are afforded an opportunity to be heard. (Republic v. Sandiganbayan, 416 SCRA 133, 2003). Q: In a criminal proceeding, when is the presence of the accused required? A: 1. During arraignment; 2. Promulgation of judgment except when the conviction is for a light offense, in which case, it may be pronounced in the presence of his counsel or a representative; and 3. When ordered by the court for purposes of identification. Note: Such requirement has no application to the proceedings or to the entry and promulgation of the judgments before the CA and SC. The defendant need not be present during the hearing of the appeal (Sec. 9, Rule 124).

Q: What is the order of trial in criminal cases? A: In criminal cases, unless the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial shall proceed in the following order: 1.

2.

K. TRIAL Q: What is a trial?

3.

A: Trial is the examination before a competent tribunal according to the laws of the land, of facts put in issue in a case for the purpose of determining such issue. 4. After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within 30 days from receipt of pre-trial order. Note: Denial of right to prepare is reversible error; the proper remedy from a judgment of conviction under such case is appeal and not certiorari nor habeas

The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of a provisional remedy in the case. The prosecution and the defense may, in that order, present rebuttal and surrebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda (Sec. 11, Rule 119).

Note: GR: The order in the presentation of evidence must be followed. The accused may not be

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 required to present evidence first before the prosecution adduces its own proof. XPN: Where a reverse procedure was adopted without the objection of the defendant and such procedure did not prejudice his substantial rights, the defect is not a reversible error.

1. INSTANCES WHEN PRESENCE OF THE ACCUSED REQUIRED Q: What are the instances when the presence of the accused is required by law? A: The only instances when the presence of the accused is required: 1. Upon arraignment and in entering plea; 2. During trial when his presence is necessary for the purpose of identification; 3. Upon promulgation of judgment except for light offenses 4. When the court with due notice requires so.

Q: What is continuous trial system? A: Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. The entire trial period shall in no case exceed 180 days from the first day of trial, except as otherwise provided by the SC (Sec. 2). The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed and dispatched so that trials are held on the scheduled dates without postponement, the factual issues for a trial well defined at pre-trial and the whole proceedings terminated and ready for judgment within ninety (90) days from the date of initial hearing, unless for meritorious reasons an extension is permitted. Note: The non-appearance of the prosecution at the trial, despite due notice, justifies a provisional dismissal or an absolute dismissal depending upon the circumstances.

Q: Is there a time limit for the trial of criminal cases?

Q: What are the cases where the time limitation is inapplicable?

A:

A:

GR: Trial shall not exceed 180 days from the first day of trial. XPNs: 1. Those governed by the rules on summary procedure; 2. Those where the penalty prescribed by law does not exceed 6 months imprisonment or a fine of P1,000 or both; and 3. Those authorized by the Chief Justice of the SC. (Sec. 6, R.A. 8493, Speedy Trial Act) Note: Commencement of trial may be extended based on the following conditions: 1. For the 180 days, for the first 12 calendar month period from the effectivity of the law. 2. 120 days for the second 12 month period. 3. 80 days for the third 12 month period. (Sec. 9, R.A. 8493)

Q: What is the effect if the court failed to comply with the mandates of the Speedy Trial Act to terminate the case within the 180 day period? A: The judge may be charged administratively, or may be fined, suspended or removed unless his failure to comply with the speedy trial act is for reasons not attributable to him.

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1. 2. 3. 4. 5.

Criminal cases covered by the Rule on Summary Procedure; When the offended party is about to depart with no definite date of return; Child abuse cases (Sec. 32, R.A. 7610 or The Child Abuse Act); Violations of Dangerous Drugs Law; and Kidnapping, robbery by a band, robbery against banking or financial institution, violation of Carnapping Act and other heinous crimes (Herrera, Vol. IV, p. 796, 2007 ed.).

2. REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS Q: What are the requisites before a trial can be suspended on account of the absence of a witness? A: That the: 1. witness is material and appears to the court to be so; 2. party who applies has been guilty of no neglect; 3. witnesses can be had at the time to which the trial is deferred and no similar evidence could be obtained; and 4. affidavit showing the existence of the above circumstances must be filed.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Q: What are the remedies of the accused where a prosecuting officer without just cause secures postponements of the trial against his protest beyond a reasonable period of time? A: 1. Mandamus to compel a dismissal of the information; or 2. If he is restrained of his liberty, by habeas corpus to obtain his freedom. 3. TRIAL IN ABSENTIA Q: May trial proceed in the absence of the accused? A: YES. Section 14 (2), Article 3 of the Constitution provides that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Parada v. Veneracion, A.M. No.RTJ96-1353. March 11, 1997)

Q: What is the remedy if the accused was not brought to trial within the time limit? A: The remedy of the accused is to file a motion to dismiss the information on the ground of the denial of his right to speedy trial. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of his right to file a motion to dismiss. The accused shall have the burden of proving such denial of right, but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time. The dismissal shall be subject to the rules on double jeopardy. So if the dismissal is with prejudice, the case cannot be revived anymore. But if the dismissal is without prejudice, the revival of the case is proper (Sec. 9, Rule 119). 5. REQUISITES FOR THE DISCHARGED OF THE ACCUSED TO BECOME A STATE WITNESS Q: Who is a State witness?

Q: What are the requisites for trial in absentia? A: 1. 2. 3.

The accused has been arraigned; He has been notified of the trial; and His failure to appear is unjustified.

Q: What are the effects of trial in absentia? A: The accused waives the right to present evidence and cross-examine the witnesses against him. The accused’s waiver does not mean, however, that the prosecution is deprived of the right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he has unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. 4. REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD Q: What is the remedy available to the accused if he is not brought to trial within the period prescribed by the Rules of Court? A: The information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The dismissal shall be subject to the rules on double jeopardy (Sec. 9, Rule 119). Note: The trial of an accessory can proceed without awaiting the result of separate charge against the principal (Vino v. People, G.R. No. 84163, Oct. 19, 1989).

A: He is one of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the State (People v. Ferrer, G.R. No. 102062, Mar. 14, 1996). Q: What are the requisites before an accused may become a State witness? A: 1. There is absolute necessity for the testimony of the accused whose discharge is requested; 2. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused; 3. The testimony of said accused can be substantially corroborated in its material points; 4. Said accused does not appear to be the most guilty; and 5. Said accused has not at any time been convicted of any offense involving moral turpitude (Sec. 17, Rule 119). Note: All the requisites must be complied with. (Herrera, Vol. IV, p. 820, 2007 ed.) Law enforcement officers, even if he would be testifying against the other law enforcement officers cannot be a State witness. In such a case, only the immediate members of his family may avail themselves of the protection provided for under the Witness Protection Act (Sec. 3, R.A. 6981, Witness Protection Act).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: When should the application for discharge of the state witness be made?

Q: Distinguish Witness Protection Program from Sec. 17, Rule 119 of the Rules of Court.

A: It should be made upon motion of the prosecution before resting its case.

A:

6. EFFECTS OF THE DISCHARGE Q: What are the effects of the order discharging the accused as a State witness? A: GR: 1.

2.

3.

Discharge of accused operates as an acquittal and bar to further prosecution for the same offense Evidence adduced in support of the discharge shall automatically form part of the trial (People v. Feliciano, G.R. No. 136258, Oct. 10, 2001); and If the court denies the motion to discharge the accused as State witness, his sworn statement shall be inadmissible in evidence (People v. Feliciano, G.R. No. 136258, Oct. 10, 2001).

XPN: 1. When the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of his discharge (Sec. 18). 2. Failure to testify refers exclusively to defendant’s will or fault, 3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him. (People v. Beberino GR No L-23213 October 28, 1977) Note: Discharge under this rule is only one of the modes to be a State witness. Other modes are: 1. 2.

The Witness Protection Program of R.A. 6981; The power of the Ombudsman to grant immunity under Sec. 17, R.A. 6770.

Q: What are the effects if the discharged accused retracts or fails to comply with his part of the agreement? A: If the retraction or failure to testify is solely his fault, his confession of his participation in the commission of the crime is admissible as evidence (People v. Beberino, G.R. No. L-23092, Oct. 28, 1977).

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Witness Protection Program The offense in which the testimony is to be used is limited only to grave felony. The immunity is granted by DOJ. The witness is automatically entitled to certain rights and benefits. The witness need not be charged elsewhere. No information may thus be filed against the witness.

Rules of Court It has no qualifications. It applies to all felonies. The immunity is granted by court. The witness so discharged must still apply for the enjoyment of said rights and benefits in the DOJ. He is charged in court as one of the accused as stated in the information. The charges against him shall be dropped and the same operates as an acquittal.

Q: When will discharge of an accused operate as an acquittal? A: GR: The discharge of the accused shall amount to an acquittal and shall be a bar to future prosecution for the same offense. XPN: If the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge (Sec. 18, Rule 119). Q: What shall be done when mistake has been made in charging the proper offense? A: When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears to be a good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the case upon filing of the proper information (Sec. 19, Rule 119). Note: This rule is predicated on the fact that an accused has the right to be informed of the nature and cause of the accusation against him, and to convict him of an offense different from that charged in the complaint or information would be an unauthorized denial of that right.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 7. DEMURRER TO EVIDENCE

the proceedings (People v. Mahinay, G.R. No. 109613, July 17, 1995).

Q: What is demurrer to evidence? A: It is an objection by one of the parties in an action to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue.

Note: If the demurrer is sustained by the court, the order of dismissal is tantamount to an acquittal. Hence it is NOT appealable.

L. JUDGMENT 1. REQUISITES OF A JUDGMENT

Q: What is the rule on demurrer of evidence? Q: What is judgment? A: How made 1. Court on its own initiative; or 2. Upon filing of the accused for demurrer of evidence: a. With leave of court; or b. Without leave of court When made After the prosecution rests its case Ground Insufficiency of evidence Effect The court may dismiss the case (Sec. 23)

Q: Distinguish the effect of filing a demurrer with leave of court from filing a demurrer without leave? A: Demurrer With Leave of Court

If leave of court is denied, the accused may proceed with presenting his evidence

If leave of court is granted, the accused may file the demurrer to evidence within ten (10) days. The prosecution may however, oppose the demurrer to evidence within a non-extendible period of ten (10) days from the receipt of the demurrer.

Demurrer Without Leave of Court If demurrer is denied, it is tantamount to a waiver of the accused’s right to present evidence and as a consequence the case will be submitted for judgment on the basis of the evidence for the prosecution.

If demurrer is granted, the case will be dismissed, and will result to an acquittal of the accused (Sec.23).

A: It is an adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability, if any (Sec. 1). It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and is regarded as the sentence of the law pronounced by the court on the action or question before it (Sec. 1, Rule 120). Q: What are the requisites of judgment? A: It must be: 1. Written in official language; 2. Personally and directly prepared by the judge; 3. Signed by the judge; and 4. Contain clearly and distinctly a statement of the facts and the law upon which it is based (Sec. 1, Rule 120). Note: Decisions of the court shall contain the facts and the law on which they are based (Sec. 14, Art. VIII, 1987 Constitution). The rationale is that the losing party is entitled to know why he lost, so he may appeal to a higher court.

Q: How is entry of judgment made? A: The recording of the judgment or order in the book of entries of judgments shall constitute its entry. The record shall contain the dispositive part of the judgment order and shall be signed by the clerk, with a certificate that such judgment or order has become final and executory(Sec. 2, Rule 36). Q: What is mittimus? A: It is a process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in accordance with the terms of judgment.

Q: What is the purpose of leave of court in demurrer to evidence?

Q: What is reasonable doubt?

A: To determine whether or not the defendant in a criminal case has filed the demurrer merely to stall

A: Reasonable doubt is defined as the state of the case which, after full consideration of all evidence, leaves the mind of the judge in such a condition

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 that he cannot say that he feels an abiding conviction toa moral certainty of the truth of the charge. Q: What is acquittal? A: An acquittal is a finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case upon motion of the accused on the ground that the evidence fails to show beyond reasonable doubt that the accused is guilty, Note: It is well settled that acquittal, in a criminal case is immediately final and executor upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00-1568, February 15, 2001).

Q: Is there a maximum duration for the court’s sentence? A: YES. In the service of sentence, the maximum duration of the court’s sentence shall not be more than three- fold the length of time corresponding to the most severe of the penalties imposed upon the accused, and such maximum shall in no case exceed forty years. 2. CONTENTS OF JUDGMENT Q: What are the contents of judgment? A: The judgment must state: 1. If of conviction a. Legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending its commission; b. Participation of the accused whether as principal, accomplice or accessory; c. Penalty imposed upon the accused; and d. Civil liability or damages caused by the wrongful act or omission unless a separate civil action has been reserved or waived. 2.

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If of acquittal a. Whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt; and

b.

In either case, the judgment shall determine if the act or omission from which the civil liability might arise did exist (Sec. 2, Rule 120).

Q: What is the rule regarding a judgment for two or more offenses charged in the complaint or information? A: The court may convict the accused of as many offenses as are charged and proved, and impose the penalty for each offense, setting out separately the findings of fact and law in each offense (Sec. 3) Note: Failure of the accused to object to the duplicity of offense charged in the complaint or information, is deemed a waiver thereof (Herrera, Vol. IV, p. 882, 2007 ed.).

Q: What is the rule regarding a judgment in case of variance between the offense charged and proved? A: GR: An accused can be convicted of an offense only when it is both charged and proved; if it is not charged although proved, or if it is not proved although charged, the accused CANNOT be convicted thereof. XPN: Where there is a variance between the offense charged in the complaint or information and that proved AND the offense as charged is included in or is necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (Sec. 4). Note: An accused cannot be convicted of an offense not charged or included in the information for this will be in violation of the constitutional right of the accused to be informed of the nature of the offense charged against him (Herrera, Vol. IV, p. 882, 2007 ed.).

Q: What happens when an offense includes or is included in another? A: GR: If what is proved by the prosecution evidence is an offense which is included in the offense charged in the information, the accused may validly be convicted of the offense proved. An offense charged NECESSARILY INCLUDES the offense proved when some of the essential ingredients or ingredients of the former as alleged in the complaint or information constitute the latter.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE An offense charged NECESSARILY INCLUDED in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. XPN: Where the facts supervened after the filing of information which changed the nature of the offense.(Sec. 5). Note: An accused cannot be convicted for the lesser offense necessarily included in the crime charged if at the time of the filing of the information, the lesser offense has already prescribed (Francisco v. CA, G.R. No. L-45674, May 30, 1983).

Q: What is the effect of the judgment of conviction upon a minor? A: The courts shall promulgate the sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to P.D. 603 or the Child and Youth Welfare Code. In which case, the child shall have been committed under the care of the DSWD or any other accredited government institution until he reaches the age of twenty one (21) or until the court so determines (Sec. 40, R.A. 9344, Juvenile Justice and Welfare Act of 2006).

Q: What is probation? A: A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the court and under the supervision of a probation officer (Sec. 3, PD 968, Probation Law). 3. PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA Q: What is promulgation of judgment? A: It is the official proclamation or announcement of judgment. It consists of reading the judgment or sentence in the presence of the accused and any judge of the court rendering the judgment. Q: How is judgment promulgated? A: It is promulgated by reading it in the presence of the accused and any judge of the court which rendered it (Sec. 6). Q: Is the accused required to be present during the promulgation of judgment? A: GR: Yes. XPNs: 1. In case of acquittal; 2. Conviction of light offense wherein the judgment may be pronounced in the presence of the accused’s counsel or representative; and 3. Promulgation of judgment when the accused was tried in absentia(Sec. 6).

Q: What are the exceptions for suspension of sentence of youthful offenders? A: Offender: 1. has enjoyed previous suspension of sentence; 2. is convicted of a crime punishable by death or life imprisonment; 3. is convicted by a military tribunal; or 4. is already of age at the time of sentencing even if he was a minor at the time of the commission of the crime (Declarador v. Gubaton, G.R. No. 159208, Aug. 18, 2006). Q: What if the minor already reached the age of majority upon the promulgation of his sentence? A: He is no longer entitled to the suspension of sentence. However, the time he spent during the period of his confinement shall be credited to his actual service of sentence. Furthermore, he shall still be entitled to the privileged mitigating circumstance of minority (People v. Francisco, G.R. No. 102976, Oct. 25, 1995; R.A. 9344, Juvenile Justice and Welfare Act of 2006).

Q: Who promulgates the judgment? A: GR: The judge of the court who renders the judgment. XPN: When: 1. The judge is absent or outside the province or city – judgment may be promulgated by the clerk of court; and 2. Accused is confined or detained in another city – judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention (Sec. 6). Q: Is the presence of the accused indispensable in the promulgation of judgment? A: No. The promulgation shall still be made by recording such judgment in the criminal docket and

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 serving him a copy thereof in his last known address or through his counsel. If judgment is one of conviction and the accused is absent without justifiable cause, the court shall order his arrest and he shall lose the remedies available in the rules against judgment and his bail shall be forfeited.

Q: What is the remedy if the judgment fails to award civil liability? A: 1. Appeal; 2. Certiorari; or 3. Mandamus

However, the accused may surrender and file a motion for leave of court to avail of these remedies within fifteen (15) days from the promulgation of judgment. If such motion is granted, he may avail of these remedies within fifteen (15) days from notice of such order granting the motion (Sec. 6).

4. WHEN DOES JUDGMENT BECOME FINAL (FOUR INSTANCES) Q: When does judgment becomes final? A: Judgment becomes final: 1. After the lapse of time for perfecting an appeal 2. When the sentence has been partially or totally satisfied 3. When the accused has expressly waived in writing his right to appeal 4. When the accused has applied for probation

Note: He must however, state the reasons for his absence at the promulgation and prove that his absence was for a justifiable cause.

Q: What are the instances when judgment may be promulgated even if the accused is not present? A: 1.

2.

Judgment is for a light offense, in which case judgment may be promulgated in the presence of the counsel for the accused or a representative. Accused fails to attend the promulgation despite due notice or if he jumped bail or escaped from prison. Notice must be given to the bondsmen, warden, accused’s bailor and counsel (Sec. 6).

Q: When may the trial court lose jurisdiction even before the lapse of the 15 day period? A: The trial court loses jurisdiction even before the lapse of the 15 day period when: 1. The defendant voluntarily submits to the execution of the judgment; 2. When the defendant perfects an appeal; 3. Defendant withdraws his appeal; 4. Accused expressly waives in writing his right to appeal; 5. Accused files for probation.

Q: How is promulgation in absentia conducted? A: Promulgation shall be made by: 1. Recording the judgment in the criminal docket; and 2. Serving the accused a copy thereof at his last known address or through his counsel.

M. NEW TRIAL OR RECONSIDERATION 1. GROUNDS FOR NEW TRIAL 2. GROUNDS FOR RECONSIDERATION Q: Distinguish new trial from reconsideration? A: New trial Rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken Grounds: 1. Errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial.

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Reconsideration May be filed in order to correct errors of law or fact in the judgment. It does not require any further proceeding. Grounds: 1.

Errors of law; or

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 2.

New and material evidence has been discovered which the accused could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted would probably change the judgment (Sec. 2).

3.Other grounds which the court may consider in the exercise of its jurisdiction : a. Negligence or incompetency of counsel or mistake which is so gross amounting to deprivation of the substantial rights of the accused and due process; (Aguilar v. Court of Appeals GR No. 114282, November 28, 1995) b. Recantation of a witness where there is no evidence sustaining the judgment of conviction other than the testimony of such witness; (Tan Ang Bun v. Court of Appeals GR No c. Improvident plea of guilty which may be withdrawn; d. Disqualification of attorney de officio to represent accused in trial.

2.

Errors of fact (Sec. 3).

Note: The principle underlying this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from being taken. The grant by the court of reconsideration should require no further proceedings, such as taking of additional proof.

Q: When should a motion for new trial or consideration be filed?

Q: What should be the form of a motion for new trial or reconsideration?

A: It should be filedwith the trial court within 15 days from the promulgation of the judgment.

A: The motion must: 1. be in writing; 2. filed in court; 3. state the grounds on which it is based; and 4. if the motion for new trial is based on newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is expected to be given or duly authenticated copies of documents which it is proposed to introduce in evidence (Sec. 4).

Note: Notice of the motion for new trial or reconsideration shall be given to the prosecutor.

Q: When should a motion for reconsideration of any final order or order be filed in cases before the Sandiganbayan? A: It may be filed within fifteen (15) days from the promulgation or notice of final order or judgment (Sec. 5, R.A. 8249). Note: Such motion for reconsideration shall be decided within 30 days from submission (Sec. 5, R.A. 8249).

Q: When may a new trial granted? A: It may be granted at any time before the judgment of conviction becomes final on motion of the accused or the court with the consent of the accused (Sec. 1). Note: The award of new trial or taking of additional evidence rests upon the sound discretion of the court. Once the appeal is perfected, the court a quo loses jurisdiction over it, except for the purpose of correcting clerical errors. In such case, the appellate court steps in. When new material evidence has been discovered, the accused may file a motion for new trial with the appellate court.

Note: While the rule requires that an affidavit of merits be attached to support a motion for new trial based on newly discovered evidence, the rule also allows that the defect of lack of merit may be cured by the testimony under oath of the defendant at the hearing of the motion (Paredes v. Borja, G.R. No. L15559, Nov. 29, 1961).

Q: What is recantation? Is it a ground for new trial? A: Recantation is the public and formal withdrawal of a witness of his prior statement (People v. Ballabare, G.R. No. 108871, Nov. 19, 1996). It is not a ground for new trial because it makes a mockery of the court and would place the investigation of truth at the mercy of unscrupulous witness. Moreover, retractions are easy to extort out of witness. In contrast, their statements are made under oath, in the presence of judge, and with the opportunity to cross-examine.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Distinguish recantation from desistance. A: Recantation A witness who previously gave a testimony subsequently declares that his statements are untrue publicly (People v. Ballabare, G.R. No. 108871, Nov. 19, 1996). GR: It is not a ground for granting a new trial and are hardly given weight XPN: When there is no evidence sustaining the judgment of conviction other than the testimony of the recanting witness (Tan Ang Bun v. CA, G.R. No. L-47747, Feb. 15, 1990).

Affidavit of Desistance

The complainant states that he did not really intend to institute the case and he is no longer interested in testifying or prosecuting.

It is not by itself a ground for dismissal of the action (People v. Ramirez, G.R. Nos. 150079-80, June 10, 2004). It is merely an additional ground to buttress the defense and not a sole consideration for acquittal (People v. Ballabare, G.R. No. 108871, Nov. 19, 1996).

3. REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE Q: What are the requisites before a new trial may be granted on the ground of newly discovered evidence? A: That: 1. the evidence was discovered after trial; 2. such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; 3. it is material, not merely cumulative, corroborative or impeaching; and 4. the evidence is of such a weight that it would probably change the judgment if admitted (Herrera, Vol. IV, p. 935, 2007 ed.). Q: May errors or ignorance of counsel be a ground for new trial or consideration? A: GR: 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. XPN: If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that

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the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case (Abrajano v. CA, G.R. No. 114282, Oct. 13, 2000). 4. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION Q: What are the effects of granting a new trial or reconsideration? A: In all cases, when the court grants a new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. In addition, when granted on the ground of: 1. Errors of law or irregularities committed during the trial a. All proceedings and evidence not affected by such errors and irregularities shall stand; b. Those affected shall be set aside and taken anew; and c. In the interest of justice, the court may allow the introduction of additional evidence. 2.

Newly discovered evidence a. The evidence already taken shall stand; b. Newly discovered and other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record (Sec. 6).

Note: The effect of granting a new trial is not to acquit the accused of the crime of which the judgment finds him guilty but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been had before.

5. APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES Q: What is the effect of filing a motion for new trial or reconsideration on the period of perfecting an appeal? A: A fresh period of fifteen (15) days to appeal is counted from the denial of the motion for reconsideration or new trial (Neypes v. CA, G.R. No. 141524, Sept. 14, 2005). Note: Denial of a motion for reconsideration or new trial is not appealable nor subject of certiorari; but it may be raised as an error on appeal.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Q: Distinguish new trial from reopening of the case. A: New Trial Filed after judgment is rendered but before the finality thereof. Made by the court on motion of the accused or at its own instance but with the consent of the accused.

Re-opening of the Case Made by the court before the judgment is rendered in the exercise of sound discretion. Does not require the consent of the accused; may be at the instance of either party who can thereafter present additional evidence.

Q: What is the “fresh period rule” as enunciated in Neypes? A: In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within which to appeal. The Court categorically set a fresh period of 15 days from a denial of a motion for reconsideration within which to appeal. The "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution (Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005). Q: Does the “fresh period rule” apply to criminal cases? A: Yes. The Court held in the case of Yu v. SamsonTatad(G.R. No. 170979, Feb. 9, 2011) that the pronouncement of a “fresh period” to appeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122, for the following reasons: First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned – the appeal period

stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed. Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure. N. APPEAL 1. EFFECT OF AN APPEAL Q: What are the modes of review? A: The Rules of Court recognize four modes by which the decision or final order of the court may be reviewed by a higher tribunal: 1. Ordinary Appeal; 2. Petition for Review; 3. Petition for Review on Certiorari; 4. Automatic Appeal Q: What is appeal? A: It is a proceeding for review by which the whole case is transferred to the higher court for a final determination. It is not an inherent right of a convicted person. The right of appeal is statutory. Only final judgments and orders are appealable. Q: Who may appeal? A: Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy (Sec. 1). Q: What is the effect of an appeal? A: An appeal in a criminal case opens the whole case for review and this includes the review of penalty, indemnity, and the damages involved. Consequently, on appeal, the appellate court may increase the penalty and indemnity of damages awarded by the trial court although the offended party had not appealed from said award, and the party who sought a review of the decision was the accused.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Note: When an appeal has been perfected, the court a quo loses jurisdiction.

Q: May the prosecution appeal a judgment of acquittal?

Q: What is the difference between the appeal of a judgment nd the appeal of an order?

A: GR: No, because the accused would be subjected to double jeopardy.

A: The appeal from a judgment must be perfected within 15 days from promulgation. The appeal from an order should be perfected within 15 days from notice of the final order.

XPNs: 1. If the dismissal is made upon motion or with the express consent of the accused. However, double jeopardy will still attach if the dismissal is based on: a. Insufficiency of the prosecution evidence; or b. Violation of the accused’s right to speedy trial. 2. If the dismissal is not an acquittal or based upon consideration of the evidence on the merits; 3. If the question is purely legal so that should the dismissal be found incorrect, the case shall be remanded for further proceedings to determine the guilt or innocence of the accused; and 4. If there is a showing of grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari under Rule 65 may be available.

2. WHERE TO APPEAL Q: When is appeal taken? A: An appeal must be filed within fifteen (15) days counted from the promulgation or notice of the judgment or order appealed from. Q: Where is the appeal taken? A: To the: 1. RTC, in cases decided by the MTC, MTCC, MeTC, or MCTC; 2. CA or to the SC in the proper cases provided by law, in cases decided by the RTC; 3. SC, in cases decided by the CA (Sec. 2).

3. HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002) Q: How is appeal taken? A: Appeal to

From decision of

How taken

RTC

MTC

1. 2.

File a notice of appeal with the MTC; Serve a copy of the notice to the adverse party.

1. 2.

File a notice of appeal with the RTC; Serve a copy of the notice to the adverse party.

CA

RTC 1. Exercising its original jurisdiction for offenses with imposable penalties less than reclusion perpetua or life imprisonment 2. Exercising its appellate jurisdiction 3. Where the imposable penalty is: a. life imprisonment or reclusion perpetua; or b. a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable reclusion perpetua or life imprisonment 4. Where the imposable penalty is death

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File a petition for review under Rule 42.

1. 2.

File a notice of appeal with the RTC; Serve a copy of the notice to the adverse party.

Automatic review to CA (Sec. 10)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 1.

2.

All other appeals except: a. Decision of RTC where the imposable penalty is life imprisonment or reclusion perpetuaor a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable by reclusion perpetua or life imprisonment; and b. Decisions of RTC imposing the penalty of death. CA a. b.

SC 3.

When it finds that death penalty should be imposed Where it imposes reclusion perpetua, life imprisonment or a lesser penalty

Sandiganbayan a. Exercising its appellate jurisdiction for offenses where the imposable penalty is reclusion perpetua or life imprisonment b.

c.

d.

Exercising its original jurisdiction for offenses where the imposable penalty is reclusion perpetua and life imprisonment Exercising its original or appellate jurisdiction where it finds that the penalty to be imposed is death Cases not falling in paragraphs a and b above

Petition for review on certiorari via Rule 45

Automatic review (Sec. 13, Rule 124) Notice of appeal (Sec. 13, Rule 124)

File a notice of appeal

File a notice of appeal (Sec. 13, Rule 124; Sec. 5, PD 1606 as amended by R.A. 8249) Automatic review (Sec. 13, Rule 124; Sec. 5, PD 1606 as amended by R.A. 8249) Petition for review on certiorari via Rule 45

5. GROUNDS FOR DISMISSAL OF APPEAL

4. EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED Q: What are the effects of appeal by any of the several accused?

Q: What are the grounds for the dismissal of an appeal? A:

A:

1. 1.

2.

3.

An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter; The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from; and Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party (Sec. 11).

Note: In People v. Fernandez (G.R. No. 80481, June 27, 1990), the SC applied the benefit of an acquittal handed down in an appeal to an accused who jumped bail or escaped.

2.

3.

4.

5.

6.

Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of Rule 40 and section 4 of Rule 41; Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; Failure of the appellant to serve and file the required number of copies of his brief of memorandum within the time provided by these Rules; Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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7.

8.

9.

section 13, paragraphs (a), (c), (d) and (f) of Rule 44; 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; 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 The fact that the order or judgment appealed from is not appealable (Rule 50)

5.

Q: What are the requisites for issuing a search warrant? A: 1. 2. 3.

O. SEARCH AND SEIZURE 1. NATURE OF SEARCH WARRANT

4.

Q: What is a search warrant? A: A search warrant is an order in writing issued in the of the People of the Philippines, signed by the judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. Note: The warrant MUST name the person upon whom it is to be served EXCEPT in those cases where it contains a DESCRIPTIO PERSONAE such as will enable the officer to identify the person. The description must be sufficient to indicate clearly the proper person upon whom it is to be served. (People v. Veloso GR No L23051, October 20, 1925)

Q: What is a general warrant? A: A general warrant is a search warrant which vaguely describes and does not particularize the personal properties to be seized without a definite guidelines to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion regarding what articles they should seize. NOTE: A general warrant is not valid as it infringes on the constitutional mandate requiring particular description of the things to be seized.

Q: What is the nature of a search warrant? A: 1.

2. 3. 4.

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Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions; Search warrants have no relation to civil process or trials; and They are not available to individuals in the course of civil proceedings; It is not for the maintenance of any mere private right;

It is interlocutory in character- it leaves something more to be done, the determination of the guilt of the accused.

5.

6. 7.

8.

The search warrant must be issued upon probable cause; Probable cause must be determined by the judge; The judge must have personally examined the witness, in the form of searching questions and answers, the applicant and his witnesses and took down their depositions; Must particularly describe or identify the property to be seized as far as the circumstances will ordinarily allow; Must particulary describe the place to be searched and the person or things to be seized; Must be in connection with one specific offense: The sworn statements together with the affidavit submitted by witnesses must be attached to the record. (Prudente v. Dayrit GR No. 82870, December 14, 1989); It must not have been issued more than 10 days prior to the search made pursuant thereto.

Note: Two points must be stressed in connection with this mandate: (1) that NO warrant of arrest shall issue but upon probable cause to be determined by the judge in the manner set forh in said provision, and (2) that the warrant shall particularly describe the things to be seized. (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967)

Q: Distinguish Search from Seizure. A: The term search as applied to searches and seizures is an examination of a man’s house or other buildings or premises or of his person with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged. A seizure is the physical taking of a thing into custody.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 2. DISTINGUISH FROM WARRANT OF ARREST Q: Distinguish a warrant of arrest from a search warrant.

3. APPLICATION FOR SEARCH WARRANT, WHERE FILED Q: Where should an application for a search warrant be filed?

A: Warrant of Arrest

Search Warrant

Order directed to the peace officer to execute the warrant by taking the person stated therein into custody so that he may be bound to answer for the commission of the offense.

Order in writing in the name of the Republic of the Philippines signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court.

Does not become stale.

Validity is for 10 days only.

To be served only in daytime unless the May be served on any day affidavit alleges that the and at any time of day or property is on the person night. or in the place to be searched. Must personally conduct Searching examination of an examination of the witnesses is not necessary. complainant and the witnesses. Judge is merely called upon to examine and evaluate the report of the prosecutor and the evidence

Examination must be probing. Not enough to merely adopt the questions and answers asked by a previous investigator

Note: In general, the requirements for the issuance of a search warrant are more stringent than the requirements for the issuance of a warrant of arrest. The violation of the right to privacy produces a humiliating effect which cannot be rectified anymore. This is why there is no other justification for a search, except a warrant. On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty.

Q: Why are the requirements for the issuance of a search warrant more stringent than the requirements for the issuance of a warrant of arrest? A: The violation of the right to privacy produces a humiliating effect which cannot be rectified anymore. This is why there is no other justification for a search, except a warrant. On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty.

A: GR: It should be filed with the court within whose territorial jurisdiction the crime was committed. For compelling reasons, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced XPNs: 1.

2.

However, if the criminal action has been filed, the application shall only be made in the court where the criminal action is pending (Sec. 2); In case of search warrant involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti- Money Laundering Act of 2001, the Tariff and Customs Code, the Executive judges and whenever they are on official leave of absence or are not physically present in the station, the Vice- Judges of RTCs of Manila and Quezon City shall have the authority to act on the application filed by the NBI, PNP and the Anti- Crime Task Force (ACTAF). (Administrative Matter No. 99-10-09-SC) Note: The application shall be personally endorsed by the heads of such agencies and shall particularly described therein the places to be searched and/ or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and the Vice- Exceutive Judges concerned shall issue the warrants if justified, which may be served outside the territorial jurisdiction of said courts. (Sps. Marimla v. People of the Philippines, GR No. 158467, October 16, 2009)

4. PROBABLE CAUSE Q: What is probable cause? A: It refers to the facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 (Burgos v. Chief of Staff, G.R. No. L-65334, Dec. 26, 1984).

4.

Q: What are the requisites in determining the existence of probable cause?

5.

A: 1. 2. 3.

The judge must examine the complainant and his witness personally; The examination must be under oath; and The examination must be reduced in writing in the form of searching questions and answers (People v. Mamaril, 420 SCRA 662)

6. PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED Q: What are the kinds of personal properties to be seized by virtue of a search warrant? A:

Q: Who determines probable cause?

1. 2.

A:

3. GR: Probable cause must be determined personally by the judge (Article 3, Section 2, 1987 Constitution) XPN: Deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested following a final order of deportation for the purpose of deportation (Harvey v. Defensor- Santiago GR No 82544, June 28, 1988)

Note: The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings. (Tiu Chun Hai v. Commissioner, G.R. No. L-10009 December 22, 1958)

Q: What is Multi Factor Balancing Test in determining probable cause? A: Multi Factor Balancing test is one which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed, and the circumstances attending the incident. 5. PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESS Q: What are the requisites examination by the judge?

of

personal

A: 1. 2. 3.

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The judge must examine the witness personally; The examination must be under oath; The examination must be reduced to writing in the form of searching questions and answers (Marinas v. Siochi, G.R. Nos. L-25707 & 25753-25754, May 14, 1981);

It must be probing and exhaustive, not merely routinary or pro forma (Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986); and It is done ex-parte and may even be held in the secrecy of chambers (Mata v. Bayona, G.R. No. L-50720, Mar. 26, 1984).

Subject of the offense; Stolen or embezzled and other proceeds or fruits of the offense; and The means used or intended to be used as the means of committing an offense (Sec. 3).

Note: It is not required that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized (Burgos v. Chief of Staff, G.R. No. L-65332, Dec. 26, 1984).

Q: What are the tests to determine particularity of the place to be searched? A: 1.

2.

3.

When the description therein is as specific as the ordinary circumstance will allow (People v. Rubio, GR No L-35500, October 27, 1932); When the description express a conclusion of fact, not of law which the warrant officer may be guided in making the search and seizure; When the things described therein are limited to those which bear direct relation to the offense for which the warrant is being issued.

Q: What is the purpose of describing with particularity the place to be searched and the persons or things to be seized? A: The purpose of the rule is to leave the officers of the law with not discretn regarding what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made- that abuses may not be committed. (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE 7. PERSONAL PROPERTY TO BE SEIZED 3. Q: What are the kinds of personal properties to be seized by virtue of a search warrant? A: 1. 2. 3.

Subject of the offense; Stolen or embezzled and other proceeds or fruits of the offense; and The means used or intended to be used as the means of committing an offense (Sec. 3).

Note: It is not required that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized (Burgos v. Chief of Staff, G.R. No. L-65332, Dec. 26, 1984).

8. EXCEPTIONS TO SEARCH WARRANT REQUIREMENT a. SEARCH INCIDENTAL TO LAWFUL ARREST b. CONSENTED SEARCH c. SEARCH OF MOVING VEHICLE d. CHECK POINTS; BODY CHECKS IN AIRPORT e. PLAIN VIEW SITUATION f. STOP AND FRISK SITUATION g. ENFORCEMENT OF CUSTOM LAWS Q: May there be valid warrantless search? A: Yes, the following are instances where a warrantless search is valid: 1.

Search incident to lawful arrest Immediate control test – A search incidental to a lawful warrantless arrest may extend beyond the person where the exigencies of the situation justify a warrantless search for dangerous weapons and to prevent the arrestee from destroying evidence of the crime within reach (People v. Musa, G.R. No. 95329, Jan. 27, 1993).

2.

Consented search (waiver of right) – Consent cannot be presumed simply because the accused failed to object to the search. To constitute a waiver, it must appear that: a. The right exists; b. The person involved had knowledge, actual or constructive, of the existence of such rights; and c. Actual intention to relinquish such rights (People v. Burgos, G.R. No. 92739, Aug. 2, 1991).

4.

Search of moving vehicle – May validly be made without a search warrant because the vessel or aircraft can quickly move out of the jurisdiction before such warrant could be secured (People v. Lo Ho Wing, G.R. No. 88017, Jan. 21, 1991). Checkpoints; body checks in airport NOTE: Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. (People v. Vinecario, G.R. No. 141137, January 20, 2004) In body checks in airports, passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. (People v. Johnson, G.R. No. 138881, December 18, 2000)

5. Plain view situation The plain view doctrine authorizes a search and a seizure without a warrant. For the doctrine to apply, the following requisites must be met: a. There must have been a legal presence in the place where the search is made; b. The evidence was discovered inadvertently by an officer with a right to be where he is;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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The evidence is immediately apparently illegal; and There is no need for any further search to obtain the evidence (People v. Concepcion, 361 SCRA 540; People v. Sarap, 399 SCRA 503; People v. Go; 411 SCRA 81)

6. Stop and frisk situations This is a limited protective search of the outer clothing of a person to determine the presence of weapons. Probable cause is not required but a genuine reason (not mere suspicion) must exist, in the light of the officer’s experience and surrounding circumstances, to warrant the belief that the persons has concealed weapons (Malacat v. Court of Appeals, 283 SCRA 159). Its object is either to: a. determine the identity of a suspicious individual b. maintain the status quo momentarily while the police officer seeks to obtain more information. Note: The officer may search the outer clothing of the person in an attempt to discover weapons which might be used to assault him (Manalili v. CA, G.R. No. 113447, Oct. 9, 1997).

7.

Enforcement of custom laws

or unlawful per se ought to be returned to their rightful owner or possessor.

Q: In what court may a motion to quash the search warrant or suppress evidence be filed? A: 1. It may be filed and acted upon ONLY by the court where the action has been instituted; 2. If no criminal action has been instituted, it may be filed in and resolved by the court that issued the warrant. However if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the LATTER court. P. PROVISIONAL REMEDIES IN CRIMINAL CASES 1. NATURE Q: What is the nature of provisional remedies? A: They are those to which parties may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action. They are applied to a pending litigation for the purpose of securing the judgment or preserving the status quo; and in some cases after judgment, for the purpose of preserving or disposing of the subject matter (Cala v. Roldan, G.R. No. L-252, Mar. 30, 1946). 2. KINDS OF PROVISIONAL REMEDIES

9. REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE Q: What are the remedies against an unlawful search?

A: As far as applicable, provisional remedies under the Civil Procedure are available (Sec. 1) such as:

A: 1. 2.

3. 4.

Motion to quash the search warrant; Motion to suppress as evidence the objects illegally taken (exclusionary rule – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding); Replevin, if the objects are legally possessed; and Certiorari, where the search warrant is a patent nullity.

Note: The remedies are alternative. If a motion to quash is denied, a motion to suppress cannot be availed consequently. The illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law. However, those personalities seized in violation of the constitutional immunity whose possession is not illegal

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Q: What provisional remedies are available in criminal cases?

1. 2. 3. 4. 5.

attachment (Rule 57); preliminary Injunction (Sec. 58); receivership (Rule 59); delivery of personal property (Rule 60); support Pendent lite (Rule 61).

Q: Who may apply for attachment? A: The aggrieved party in whose behalf the civil aspect of the criminal action is prosecuted may apply for the issuance of a writ of preliminary attachment, he being the person primarily and directly interested thereby. The prosecutor in the criminal action may make such an application in behalf of or for the protection of the interest of the offended party.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE Note: The Public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party.

Q: Is notice to the adverse party required before a writ of preliminary attachment may issue? A: No notice to the adverse party, or hearing on the application is required before a writ of preliminary attachment may issue as a hearing would defeat the purpose of the provisional remedy. The time which such hearing would take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment may issue (Mindanao Savings etc v. Court of Appeals, 172 SCRA 480) Note: The only requirements for the issuance of a writ of preliminary attachment are: the affidavit and bond of the applicant.

Q: When may attachment be availed? A: Attachment may be availed of ONLY when the civil action arising from the crime has not been expressly waived or not reserved and is limited on the following instances: 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 for the use of the accused who is a public officer or a corporate officer or an attorney, broker, or agent or clerk in the course of employment or by a person in fiduciary capacity; 3. When the accused has concealed or removed or about to dispose of his property; and 4. When the accused resides abroad.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: No. Any evidence inadmissible according to the laws in force at the time the action accrued, but admissible according to the laws in force at the time of the trial is receivable.

1. CONCEPT OF EVIDENCE 3. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES

Q: What is evidence? A: Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (Sec. 1, Rule 128)

Q: Distinguish Evidence in Civil Cases from Evidence in Criminal Cases. A:

Q: What are the four component elements? A: 1. Means of ascertainment – includes not only the procedure or manner of ascertainment but also the evidentiary fact from which the truth respecting a matter of fact may be ascertained 2. Sanctioned by the rules – not excluded by the Rules of Court 3. In a judicial proceeding – contemplates an action or proceeding filed in a court of law 4. The truth respecting a matter of fact – refers to an issue of fact and is both substantive (determines the facts needed to be established) and procedural (governs the manner of proving said facts).

Civil Cases The party having the burden of proof must prove his claim by a preponderance of evidence An offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror The concept of presumption of innocence does not apply

Criminal Cases The guilt of the accused has to be proven beyond reasonable doubt An offer of compromise by the accused may be received in evidence as an implied admission of guilt The accused enjoys the constitutional presumption of innocence

4. PROOF VERSUS EVIDENCE Q: Distinguish proof from evidence.

Q: Why is evidence required? A: It is required because of the presumption that the court is not aware of the veracity of the facts involved in a case. It is therefore incumbent upon the parties to prove a fact in issue thru the presentation of admissible evidence (Riano, Evidence: A Restatement for the Bar, p. 2, 2009 ed.). 2. SCOPE OF THE RULES OF EVIDENCE

A: Proof The effect when the requisite quantum of evidence of a particular fact has been duly admitted and given weight The probative effect of evidence

NOTE: It does not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases, except by analogy or in suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1, Rules of Court)

Q: Are there vested rights under the Rules of Evidence?

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The mode and manner of proving competent facts in judicial proceedings The means of proof

5. FACTUM PROBANS VERSUS FACTUM PROBANDUM

Q: What is the scope of the Rules of Evidence? A: The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or by these rules. It is guided by the principle of uniformity. (Sec. 2, Rule 128).

Evidence

Q: Distinguish factum probandum from factum probans. A: Factum Probandum The ultimate fact sought to be established Proposition to be established Hypothetical

Factum Probans The intermediate facts Materials which establish the proposition Existent

Note: Every evidentiary question involves the relationship between the factum probandum and factum probans.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 6. ADMISSIBILITY OF EVIDENCE

of exception to the general admissibility of all that is rational and probative.

Q: Distinguish admissibility of evidence from probative value of evidence.

b. RELEVANCE OF EVIDENCE AND COLLATERAL MATTERS

A: Admissibility

Probative Value

Question of whether certain pieces of evidence are to be considered at all.

Question of whether the admitted evidence proves an issue.

Note: Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence (Heirs of Sabanpan v. Comorposa, G.R. No. 152807, Aug. 12, 2003).

a. REQUISITES FOR ADMISSIBILITY OF EVIDENCE Q: What are the requisites for admissibility of evidence? A: 1.

2.

Relevancy – such a relation to the fact in issue as to induce belief in its existence or non-existence. Competency – if not excluded by law or by the rules.

Q: What is the doctrine of “Fruit of the Poisonous Tree? A: The doctrine speaks of that illegally seized documents, papers, and things are inadmissible in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures.

Q: What is meant by relevance of evidence? A: Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Q: Is evidence on collateral matters allowed? A: Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128) Note: While the evidence may not bear directly on the issue, it will be admitted if it has the tendency to corroborate or supplement facts established previously by direct evidence, or to induce belief as to the probability or improbability of a fact in issue.

c. MULTIPLE ADMISSIBILITY d. CONDITIONAL ADMISSIBILITY e. CURATIVE ADMISSIBILITY

Q: What are the kinds of admissibility of evidence? A: MULTIPLE

Q: What are the two axioms of admissibility according to Wigmore? CONDITIONAL

A: 1.

Axiom of relevancy – none but facts having rational probative value are admissible.

Note: Components of relevancy: a. Materiality – whether the evidence is offered upon a matter properly in issue. b. Probativeness – the tendency to establish the proposition for which it is offered as evidence.

2.

Axiom of competency – facts having rational probative value are admissible unless some specific rule forbids their admission. The rules of exclusion are rules

CURATIVE

Evidence that is plainly relevant and competent for two or more purposes will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites of admissibility for other purposes. Evidence appears to be immaterial is admitted by the court subject to the condition that its connection with another fact subsequent to be proved will be established. Otherwise, such fact already received will be stricken off the record at the initiative of the adverse party. Evidence that is otherwise improper is admitted (despite objection from the other party) to contradict improper evidence presented or introduced by the other party, to cure, contradict or neutralize such improper evidence.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3.

A: 1.

American Rule – the admission of such incompetent evidence, without objection by the opoonent does not justify such opponent in rebutting it by similar incompetent evidence

2.

English Rule – if a party has presented inadmissible evidence, the adverse party may resort to similar inadmissible evidence

3.

Massachusetts Rule – the adverse pary may be permitted to introduce similar incompetent evidence In order to avoid a plain and unfair prejudice cause by the admission of the other party’s evidence.

The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Sec. 4, Rule 133; People vs Sevilleno, G.R. No. 152954, March 11, 2004).

Q: Is direct proof of previous agreement to commit a crime necessary to prove conspiracy? A: No. Considering the difficulty in establishing the existence of conspiracy, settled jurisprudence finds no need to prove it by direct evidence (Fernan, Jr. and Torrevillas v. People, G.R. No. 145927, Aug. 24, 2007). It may be deduced from the acts of the perpetrators before, during and after the commission of the crime which are indicative of a common design, concerted action and concurrence of sentiments (Serrano v. CA, G.R. No. 123896, June 25, 2003). g. POSITIVE AND NEGATIVE EVIDENCE

Q: What should determine the application of the rule of curative admissibility?

Q: What is positive and negative evidence?

A:

A: 1. Whether the incompetent evidence was seasonably objected to; and 2. Whether, regardless of the objection, the admission of such evidence shall cause a plain and unfair prejudice to the party against whom it is admitted. f. DIRECT AND CIRCUMSTANTIAL EVIDENCE

Q: Distinguish direct evidence from circumstantial evidence. A: DIRECT EVIDENCE Establishes the existence of a fact in issue without the aid of any inference or presumption The witness testifies directly of his own knowledge as to the main facts to be proved

CIRCUMSTANTIAL EVIDENCE Does not prove the existence of a fact in issue directly, but merely provides for logical inference that such fact really exists Each proof is given of facts and circumstances from which the court may infer other connected facts which reasonably follow, according to the common experience of mankind

Q: When is circumstantial evidence sufficient to convict the accused? A: It is sufficient for conviction if: 1. There is more than one circumstance; 2. The facts from which the inferences are derived are proven; and

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1.

Positive – when the witness affirms that a fact did or did not occur, it is entitled to greater weight since the witness represents of his personal knowledge the presence or absence of a fact.

2.

Negative – when the witness states that he did not see or know of the occurrence of a fact and there is total disclaimer of personal knowledge. Such is admissible only if has to contradict positive acts of the other side or would tend to exclude the existence of fact sworn to by the other side.

Note: A denial is a negative evidence. It is considered by jurisprudence to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when it comes from the mouth of a credible witness. (People vs Mendoza, 450 SCRA 328, January 21, 2005).

h. COMPETENT AND CREDIBLE EVIDENCE Q: Distinguish competent evidence from credible evidence. A: COMPETENT Evidence is not excluded by the rules

CREDIBLE Refers to worthiness of belief (believability) Note: That quality which renders a witness worthy of th belief (Black’s, 5 Ed., 330)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 7. BURDEN OF PROOF AND BURDEN OF EVIDENCE Q: What is burden of proof? A: It is the duty of a party to present evidence to establish his claim or defense by the amount of evidence required by law (Sec. 1, Rule 131). It is also called onus probandi. Q: What are the two concepts of burden of proof? A: 1. 2.

Burden of going forward – Party’s obligation of producing evidence. Burden of persuasion – The burden of persuading the trier of fact that the burdened party is entitled to prevail.

Q: Distinguish burden of proof from burden of evidence. (2004 Bar Question) A: BURDEN OF PROOF

BURDEN OF EVIDENCE Definition It is the duty of a party to provide evidence at any stage of the trial until he has established a prima It is the duty of a party facie case, or the like duty to present evidence on of the adverse party to the facts in issue meet and overthrow that necessary to establish prima facie case thus his claim or defense by established. In both civil the amount of evidence and criminal cases, the required by law (Sec. 1, burden of evidence lies on Rule 131) the party who asserts an affirmative allegation. (Regalado, Vol. II, p. 817, 2008 ed.) Whether it shifts throughout the proceedings Does not shift as it Shifts to the other party remains throughout the when one party has entire case exactly produced sufficient where the pleadings evidence to be entitled to a originally placed it ruling in his favor What determines it Generally determined by Generally determined by the developments at the the pleadings filed by trial, or by the provisions of the party; and whoever the substantive law or asserts the affirmative of procedural rules which may the issue has the burden relieve the party from of proof presenting evidence on the fact alleged Effect of a legal presumption It does not shift the It creates a prima facie burden of proof. case and thereby sustains However, the one who the said burden of has the burden of proof evidence on the point is relieved from the time which it covers, shifting it

being, from introducing evidence in support of his averment because the presumption stands in the place of evidence. (Francisco, p. 356, 1992 ed.)

to the other party. It relieves those favored thereby of the burden of proving the fact presumed.

Note: The burden of proof is on the party who asserts the affirmative of the issue at the beginning of the case and continues on him throughout the case. Ei incumbit probatio qui dicit, no qui negat - he who asserts, not he who denies, must prove (Homeowners Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar. 11, 2005). Where insanity is alleged, the burden of proof rests upon him who alleges insanity to establish that fact but where insanity is once proved to exist, the burden of evidence is shifted to him who asserts that the act was done while the person was sane (Engle v. Doe, G.R. No. L-23317, Aug. 7, 1925).

Q: What is the test to determine where the burden of proof lies? A: The test is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain. If the defendant has affirmative defenses, he bears the burden of proof as to those defenses which he sets up in answer to the plaintiff’s cause of action (Bank of the Philippine Islands v. Spouses Royeca, G.R. No. 176664, July 21, 2008). Q: Who has the burden of proof? A: CIVIL CASE Plaintiff Defendant To show the truth of his allegations if the If he raises an affirmative defendant raises a defense. negative defense. CRIMINAL CASE Prosecution Accused When he admits the Because of presumption offense/crime charged of innocence but raises justifying, exempting circumstances, or absolutory causes.

Q: Who has the burden of evidence? A: CIVIL CASE Plaintiff Has to prove his affirmative allegations in the complaint

Defendant Has to prove the affirmative allegations in his counterclaim and his affirmative defenses

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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admitted the killing.” (Cabuslay v. People and Sandiganbayan, G.R. No. 129875, Sept. 30, 2005). Q: What is the Principle of Negative Averments? A: GR: Negative allegations need not be proved, whether in civil or criminal cases. XPN: Where such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or the defenses thereto, negative allegations should be proved. (Industrial Finance Corp., v.Tobias, G.R. No. L41555, July 27, 1977)

Q: What are the degrees of proof necessary to satisfy the burden of proof? A: 1. 2. 3.

Civil case – Preponderance of evidence Administrative case – Substantial evidence Criminal case: a. During preliminary investigation – Well founded belief of the fact of commission of a crime b. Issuance of warrant of arrest – Probable cause c. To convict an accused – Evidence of guilt beyond reasonable doubt d. Accused claims justifying/exempting circumstances – Clear and convincing evidence

Q: Who has the burden of proof if the accused seeks dismissal under the Speedy Trial Act? A: If the accused is not brought to trial within the time required, the Information shall be dismissed upon motion of the accused. In such a case, the burden of proof of supporting his motion is with the accused (Sec. 13, R.A. 8493). Q: Who has the burden of proof in self-defense? A: One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of proof shifts to the accused who must then prove the justifying circumstance. He must show by clear and convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger. Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution but on the strength of his own evidence, “for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself had

298

XPN to the XPN: In civil cases, even if the negative allegation is an essential part of the cause of action or defense, it does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party. (Regalado, Vol. II, p. 818, 2008 ed.) 8. PRESUMPTIONS Q: What are matters which need not be proved? A: 1.

2. 3. 4.

Facts admitted or not denied provided they have been sufficiently alleged (Sec. 11, Rule 8); Agreed and admitted facts (Sec. 4, Rule 129); Facts subject to judicial notice (Sec. 3, Rule 129); and Facts legally presumed (Secs. 2 & 3, Rule 131).

Q: What is presumption? A: It is an assumption of fact resulting from a rule of law, which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action (Black’s, 5thEd., 1067 citing Uniform Rule 12; NJ evidence Rule 13). It is an inference of the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. (In the matter of the Intestate Estates of Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006) Note: A presumption shifts forward with the evidence. It against whom it is directed forward with evidence to presumption.

the burden of going imposes on the party the burden of going meet or rebut the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE Q: Distinguish the classes of presumptions.

in derogation of the deed, or from denying the truth of any material fact asserted in the deed e.g. 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 [Sec. 2 (par. b)]

A: PRESUMPTION OF FACT (Praesumptiones Hominis) It is a deduction which reason draws from the facts proved without an express direction from law to that effect.

A certain inference must be made whenever the facts appear which furnish the basis of the inference

Note: Estoppel may attach even though the landlord does not have title at the commencement of the relations. It may inure in favor of the successor.

Discretion is vested in the tribunal as to drawing the inference

If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply.

Reduced to fixed rules and form a part of the system of jurisprudence

Derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind

Q: What are the requisites for a party to be estopped?

PRESUMPTION OF LAW (Praesumptiones Juris) It is a deduction which the law expressly directs to be made from particular facts.

Need not be pleaded or proved if the facts on which they are based are duly averred and established

A: 1.

Has to be pleaded and proved

2. Q: What are the kinds of presumptions of law? 3.

A: 1. 2.

Conclusive presumptions (presumptions juris et de jure) Disputable presumptions (presumptions juris tantum) a. CONCLUSIVE PRESUMPTIONS

Q: What are the requisites before estoppel can be claimed? A:

Q: What is a conclusive presumption?

1.

A: Conclusive presumptions are those which are not permitted to be overcome by any proof to the contrary.

2.

Q: What are presumptions?

the

classes

of

conclusive

A: 1.

2.

Estoppel in pais – Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be 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, (par. a)].

Conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; Intent, or at least, expectation, that this conduct shall be acted upon by, or at least influence, the other party; and Knowledge, actual or constructive, of the real facts. (Riano, Evidence: A Restatement for the Bar, p. 431, 2009 ed.)

3.

Lack of knowledge and of the means of knowledge of the truth as to the facts in question; Reliance, in good faith, upon the conduct or statements of the party to be estopped; and Action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice. (Kalalo v. Luz, G.R. No. L-27782, July 31, 1970) b. DISPUTABLE PRESUMPTIONS

Q: What are disputable presumptions? A: Those which are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence. (Sec. 3, Rule 131)

Estoppel by deed – A party to a property deed is precluded from asserting, as against another party to the deed, any right or title

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

299

UST GOLDEN NOTES 2011 Q: What are the disputable presumptions under Section 3 of Rule 130? A: 1.

2.

Unlawful act is done with an unlawful intent.

3.

Person intends the ordinary consequences of his voluntary act.

4.

Person takes ordinary care of his concerns. Note: All people are sane and normal and moved by substantially the same motives. When of age and sane, they must take care of themselves. Courts operate not because one person has been defeated or overcome by another but because that person has been defeated or overcome illegally. There must be a violation of the law (Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).

Evidence willfully suppressed would be adverse if produced. The requisites for the presumption to apply are: a. The evidence is material; b. The party had the opportunity to produce it; and c. The evidence is available only to the said party. The presumption will not be applicable when: a. Suppression of evidence is not willful; b. Evidence suppressed or withheld is merely corroborative or cumulative; c. Evidence is at the disposal of both parties; and d. Suppression is by virtue of an exercise of privilege. Note: Failure of the prosecution to present a certain witness and to proffer a plausible explanation does not amount to willful suppression of evidence since the prosecutor has the discretion/prerogative to determine the witnesses he is going to present (People v. Jalbuena, G.R. No. 171163, July 4, 2007).

6.

7.

300

8.

Obligation delivered up to the debtor has been paid.

9.

Prior rents or installments had been paid when a receipt for the later ones is produced.

A person is innocent of a crime or wrong. Note: It applies to both civil and criminal cases. Presumption of innocence of the accused accompanies him until the rendition of judgement and disappears after conviction, such that upon appeal, the appellate court will then presume the guilt of the accused.

5.

the latter.

Money paid by one to another was due to the latter. Thing delivered by one to another belonged to

10. A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him. Note: Presumption of possession of stolen goods arises once the prosecution is able to prove that a certain object has been unlawfully taken, and that the accused is in possession of the object unlawfully taken. Presumption of innocence disappears and presumption of guilt takes place.

11. 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. Person acting in public office was regularly appointed or elected to it. Ratio: It would cause great inconvenience if in the first instance strict proof were required of appointment or election to office in all cases where it might be collaterally in issue.

13. Official duty has been regularly performed. Note: All things are presumed to have been done regularly and with due formality until the contrary is proved (Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium). An adverse presumption may arise where the official act in question appears irregular on its face. This presumption extends to persons who have been appointed pursuant to a local or special statute to act in quasi-public or quasi-official capacities and to professionals like lawyers and surgeons. Ratio: a. Innocence and not wrongdoing is to be presumed; b. An official oath will not be violated; and c. A republican form of government cannot survive long unless a limit is placed upon controversies and certain trust and confidence reposed in each governmental department or agent at least to the extent of such presumption.

GR: Presumption applies to both civil as well as criminal cases.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE

XPN: Petition for writ of amparo – presumption may not be invoked by the respondent public officer or employee (Rule on the Writ of Amparo, A.M. No. 17-9-12-SC). 14. A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction. Note: Lawful exercise of jurisdiction is presumed in all cases, be it superior or inferior courts, whether in the Philippines or elsewhere, unless the record itself shows that jurisdiction has not been acquired or the record itself shows the absence of jurisdiction, in which case jurisdiction to render a judgment may not be presumed.

15. All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them. 16. Private transactions have been fair and regular. Note: Presumption that all men act fairly, honestly and in good faith, and that an individual intends to do right rather than wrong and intends to do only what he has the right to do.

17. Ordinary course of business has been followed. Note: Persons engaged in a given trade or business are presumed to be acquainted with the general customs, usages and other facts necessarily incident to the proper conduct of the business.

absence of 10 years is required; and if he disappeared after the age of 75, absence of only 5 years is sufficient. The following shall be considered dead for all purposes including the division of estate among the heirs: a.

b.

c.

d.

Person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft; Member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years; Person who has been in danger of death under other circumstances and whose existence has not been known for 4 years; If a married person has been absent for 4 consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already dead; 2 years in case of disappearance where there is danger of death under the circumstances hereinabove provided. Before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of re-appearance of the absent spouse.

24. Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact.

18. There was a sufficient consideration for a contract.

25. Things have happened according to the ordinary course of nature and ordinary habits of life.

19. Negotiable instrument was given or indorsed for a sufficient consideration.

26. Persons acting as co-partners have entered into a contract of co-partnership.

20. An endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated.

27. A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.

21. A writing is truly dated.

28. Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry.

22. Letter duly directed and mailed was received in the regular course of the mail. Note: For this presumption to arise, it must be proved that the letter was properly addressed with postage pre-paid and that it was actually mailed.

23. Absentee of 7 years, it being not known whether or not he is still alive, is considered dead for all purposes except for succession. For the purpose of opening his succession, an

29. In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired properly through their actual joint contribution of money, property or industry, such contributions and

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

301

UST GOLDEN NOTES 2011 their corresponding shares including joint deposits of money and evidences of credit are equal. 30. If the marriage is terminated and the mother contracted another marriage within 300 hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

a.

Presumptions of paternity: A child born before 180 days after the subsequent marriage is conceived during the former marriage, provided it is born within 300 days after the termination of the former

b.

marriage. A child born after 180 days following the subsequent marriage is considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage. Note: There is no presumption of legitimacy or illegitimacy when a child is born after 300 days following dissolution of marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation (Sec. 4).

no presumption

subsequent marriage termination of 1st marriage

300 days after termination of 1st marriage

180 days after the subsequent marriage

no presumption of legitimacy or illigitimacy conceived during the subsequent marriage conceived during the former marriage

termination of 1st marriage

subsequent marriage

180 days after the subsequent marriage

31. A thing once proved to exist continues as long as is usual with things of that nature. 32. The law has been obeyed. 33. A printed or published book, purporting to be printed or published by public authority, was so printed or published. 34. 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. 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

302

300 days after termination of 1st marriage

such person or his successor in interest. 36. Except for purposes of succession, when 2 persons perish in the same calamity, 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: First Person

Second Person

Presumed To Have Survived

< 15 yrs old

< 15 yrs old

older

> 60 yrs old

> 60 yrs old

younger

< 15

> 60 yrs old

< 15

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE >15 and < 60 male

>15 and < 60 female

The male

>15 and < 60 female

>15 and < 60 female

The older

< 15 or > 60

15-60

The one between those ages

37. 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). 9. LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE Q: How are the rules on evidence construed? A: The rules of evidence must be liberally construed. (Section 6, Rule 1) The Rules of Procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice.

A: The doctrine refers to a situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In such case the decision should be against the party with the burden of proof (Marubeni Corp. v. Lirag, G.R. No. 130998, Aug. 10, 2001). Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law (Sec. 1, Rule 131). The Constitution provides that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law (Sec. 1, Art. Ill). In a criminal case, its constitutional basis is the presumption of innocence and the requirement of proof beyond reasonable doubt for conviction. (1995 Bar Question) In criminal cases, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. (Malana v. People, G.R. No. 173612, Mar. 26, 2008) Q: What is the hierarchy of quantum of evidence? A:

Procedural rules myst be liberally interpreted and applied so as not to frustrate substantial justice (Quiambao vs. Court of Appeals, 454 SCRA 17, March 28, 2005). However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required (Barcenas vs Tomas, 454 SCRA 593, March 31, 2005). 10. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) (RULE 133) Q: Define weight of evidence. A: It is the probative value given by the court to particular evidence admitted to prove a fact in issue. Q: When is evidence credible? A: It is credible if it is admissible and believable and worthy of belief, such that it can be used by the courts in deciding a case. Q: Explain the Equipoise Doctrine in the law of evidence and cite its constitutional and procedural bases.

Note: Evidence, to be worthy of credit, must not only proceed from a credible source but must also be

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

303

UST GOLDEN NOTES 2011 credible in itself. It must be natural, reasonable and probable as to make it easy to believe (People v. Peruelo, G.R. No. 50631, June 29, 1981).

Q: Distinguish positive testimony from negative testimony. A: POSITIVE TESTIMONY 1. 2. 3.

4. 5.

Affirms that a fact did or did not occur. 1. Entitled to greater weight since the witness represents his personal 2. knowledge of the 3. presence or absence of a fact. When a witness declares of his own knowledge that a fact did not take place, it is an affirmation of a positive testimony.

NEGATIVE TESTIMONY

When a witness states that he did not see or know the occurrence of a fact. There is a total disclaimer of personal knowledge, hence without any representation or disavowal that the fact in question could or could not have existed or happened.

A: 1. Where the identity of the assailant is in question; 2. To determine the voluntariness of the criminal act or the sanity of the accused; 3. To determine from which side the unlawful aggression commenced, as where the accused invoked self-defense wherein unlawful aggression on the part of his opponent is an essential element; 4. To determine the specific nature of the crime committed; 5. To determine whether a shooting was intentional or accidental, the fact that the accused had personal motives to shoot the victim being weighty; and 6. Where the accused contends that he acted in defense of a stranger, since it is essential, for such defense to prosper, that the accused was not induced by revenge, resentment or other evil motive. (Regalado, Vol. II, pp. 893-894, 2008 ed.) Q: What is alibi?

Note: Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given greater evidentiary value than the positive testimony of the complaining witness. Denial is intrinsically weak, being a negative and self-serving assertion (People v. Rodas, G.R. No. 175881, Aug. 28, 2007).

Q: What are the guidelines in the assessment of credibility of a witness? A: 1.

2.

A witness who testified in clear, positive and convincing manner and remained consistent in cross-examination is a credible witness (People v. Comanda, G.R. No. 175880, July 6, 2007); and Findings of fact and assessment of credibility of a witness are matters best left to the trial court that had the frontline opportunity to personally evaluate the demeanor, conduct, and behavior of the witness while testifying (Sps. Paragas v. Heirs of Balacano, G.R. No. 168220, Aug. 31, 2005).

Q: What is motive? A: It is the moving power which impels one to action for a definite result (The Revised Penal Code [Book One] by L. Reyes, p.57, 2001 ed.). Q: When is evidence of motive relevant?

304

A: It is a defense where an accused claims that he was 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 (People v. Esperanza, G.R. Nos. 139217-24, June 27, 2003). A categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over an alibi (People v. Gingos and Margote, G.R. No. 176632, Sept. 11, 2007). When this is the defense of the accused, it must be established by positive, clear and satisfactory evidence. Note: For the defense of alibi to prosper, the accused must show that: 1. He was somewhere else; and 2. It was physically impossible for him to be at the scene of the crime at the time of its commission. (People v. Gerones, et.al., G.R. No. L-6595, Oct. 29, 1954)

Q: What is Out-of-Court Identification? A: It is a means of identifying a suspect of a crime and is done thru: 1. Show-ups: where the suspect alone is brought face to face with the witness for identification; 2. Mug shots: where photographs are shown to the witness to identify the suspect; or

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 3.

Line-ups: where a witness identifies the suspect from a group of persons lined up for the purpose. (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995)

Q: What is the relevance of an eyewitness identification?

matters is not the number of witnesses but the 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, G.R. No. 156248, Aug. 28, 2007). Q: Define res ipsa loquitur.

A: It is often decisive of the conviction or acquittal of an accused. Identification of an accused through mug shots is one of the established procedures in pinning down criminals. However, to avoid charges of impermissible suggestion, there should be nothing in the photograph that would focus attention on a single person (People v. Villena, G.R. No. 140066, Oct. 14, 2002). Q: Is a police line-up mandatory to prove the identity of an offender? A: A police line-up is merely a part of the investigation process by police investigators to ascertain the identity of offenders or confirm their identification by a witness to the crime. Police officers are not obliged to assemble a police line-up as a condition sine qua non to prove the identity of an offender. If on the basis of the evidence on hand, police officers are certain of the identity of the offender, they need not require any police lineup anymore (Tapdasan, Jr. v. People, G.R. No. 141344, Nov. 21, 2002). Q: When is “out-of-court identification” admissible and reliable? A: It is admissible and reliable when it satisfies the “totality of circumstances” test. Under the “totality of circumstances” test, the following factors are considered: 1. Witness’ opportunity to view the criminal at the time of the crime; 2. Witness’ degree of attention at that time; 3. Accuracy of any prior description given by the witness; 4. Level of certainty demonstrated by the witness at the identification; 5. Length of time between the crime and the identification; and 6. Suggestiveness of the identification procedure. (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995) Q: Is the testimony of only one witness sufficient to convict the accused?

A: It literally means the thing speaks for itself. This doctrine provides that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care (Ramos v. CA, G.R. No. 124354, Dec. 29, 1999). Q: What are the requisites in applying the doctrine of res ipsa loquitur? A: 1. 2.

3.

4.

The occurrence of an injury; The thing which caused the injury was under the control and management of the defendant; The occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and The absence of explanation by the defendant (Professional Services, Inc. v. Agana, G.R. No. 126297, Jan. 31, 2007).

Q: Does the application of the doctrine dispense with the requirement of proof of negligence? A: No. It is considered merely as evidentiary or in the nature of procedural rule. It is simply in the process of such proof, permitting the plaintiff to present enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and thereby place on the defendant the burden of going forward with the proof to the contrary. (Ramos, et. al. v. CA, G.R. No. 124354, Dec. 29, 1999)

A: Yes. Truth is established not by the number of witnesses but by the quality of their testimonies. In determining the sufficiency of evidence, what ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the Rule on Partial Credibility of a witness? A: The testimony of a witness may be believed in part and disbelieved in another part, depending on the probabilities and improbabilities of the case (People v. Tan, G.R. No. 176526, Aug. 8, 2007). Note: If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, the court may disregard all the witness’ testimony. Falsus in uno, falsus in omnibus (False in one thing, false in everything). Note: This is not a mandatory rule of evidence but is applied by the courts in its discretion. It deals only with the weight of evidence and not a positive rule of law. The witnesses’ false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood. The court may accept and reject portions of the witness’ testimony depending on the inherent credibility thereof. (Regalado, Vol. II, p. 883, 2008 ed.)

Q: May the trial court’s findings as to the credibility of witnesses be disturbed on appeal? A: The trial court’s findings of fact will not be disturbed on appeal, unless there is a clear showing that it plainly overlooked matters of substance which, if considered, might affect the results of the review. The credibility of witnesses is best determined by the trial judge, who has the direct opportunity to observe and evaluate their demeanor on the witness stand. (People v. Pacuancuan, G.R. No. 144589, June 16, 2003). Q: May the uncorroborated testimony of an accused who turned into a State witness suffice to convict his co-accused? A: Yes. It may suffice to convict his co-accused if it is given unhesitatingly and in a straightforward manner and is full of details which by their nature could not have been the result of deliberate afterthought, otherwise, it needs corroboration, the presence or lack of which may ultimately decide the case of the prosecution and the fate of the accused (People v. Sunga, G.R. No. 126029, Mar. 27, 2003). Q: May the testimony alone of the complaining party in a rape case sufficient to convict the accused? A: Yes. In rape cases, the lone testimony of the offended party, if free from serious and material contradictions, is sufficient to sustain a verdict of conviction. No woman would openly admit that she

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was raped and consequently subject herself to an examination of her private parts, undergo the trauma and humiliation of a public trial, and embarrass herself with the need to narrate in detail how she was raped, if she was not raped at all. This ruling especially holds true where the complainant is a minor, whose testimony deserves full credence. (People v. Esperanza, G.R. Nos. 139217-24, June 27, 2003). Q: What is the Sweetheart Theory? A: It is an admission by the accused of sexual intercourse with the victim but argues that they were lovers and the act is consensual and consequently places on the accused the burden of proving the supposed relationship by substantial evidence. To be worthy of judicial acceptance, such defense should be supported by documentary, testimonial, or other evidence. Corroborative proof like notes, pictures or tokens that such a relationship had really existed must be presented (People v. Hapin, G.R. No.175782, Aug. 24, 2007). Q: Is extrajudicial confession a sufficient ground for conviction? A: It is not sufficient ground for conviction unless corroborated by evidence of corpus delicti. (Sec. 3) Q: What is corpus delicti? A: 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, G.R. No. 146481, Apr. 30, 2003). Q: What are the elements of corpus delicti? A: 1. 2.

Proof of the occurrence of a certain event; and A person’s criminal responsibility for the act (People v. Corpuz, G.R. No. 148919, Dec. 17, 2002).

Note: The identity of the accused is not a necessary element of the corpus delicti.

Q: What are the elements of illegal possession of firearm which constitute the corpus delicti? A: 1. 2.

The existence of the firearm; and That it has been actually held with animus possidendi by the accused without the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE corresponding license therefor. (People v. Solayao, G.R. No. 119220, Sept. 20, 1996)

6. Their personal credibility so far as the same may legitimately appear upon the trial; or 7. The number of witnesses, though the preponderance is not necessarily with the greater number (Sec. 1, Rule 133).

a. PROOF BEYOND REASONABLE DOUBT Q: What is meant by reasonable doubt?

c. SUBSTANTIAL EVIDENCE A: It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge. (People v. Calma, G.R. No. 127126, Sept. 17, 1998)

Q: What is substantial evidence? A: It is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Sec. 5)

Q: What does proof beyond reasonable doubt require?

Q: When is substantial evidence sufficient to establish a fact?

A: It only requires moral certainty or that degree of proof which produces conviction in an unprejudiced mind. It does not mean such degree of proof as excluding the possibility of error, produce absolute certainty. (Basilio v. People, G.R. No. 180597, Nov. 7, 2008)

A: In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if it is supported by substantial evidence.

Q: Must the identity of the accused be proved beyond reasonable doubt? A: Yes. When the identity of the accused is not established beyond reasonable doubt, acquittal necessarily follows. Conviction for a crime rests on the strength of the prosecution’s evidence, never on the weakness of that of the defense. Note: In every criminal prosecution, the prosecution must prove two things: 1. The commission of the crime; and 2. The identification of the accused as the perpetrator of the crime. What is needed is positive identification made with moral certainty as to the person of the offender (People v. Maguing, G.R. No. 144090, June 26, 2003).

b. PREPONDERANCE OF EVIDENCE Q: What are the matters that must be taken into consideration in determining where the preponderance of evidence lies? A: 1. All the facts and circumstances of the case; 2. The witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying; 3. The nature of the facts to which they testify; 4. The probability or improbability of their testimony; 5. Their interest or want of interest;

d. CLEAR AND CONVINCING EVIDENCE Q: What are the instances when clear and convincing evidence is required as quantum of proof? A: 1. Granting or denial of bail in extradition proceedings (Government of Hong Kong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19, 2005); 2. When proving a charge of bias and partiality against a judge (Rivera v. Mendoza, A.M. No. RTJ-06-2013, Aug. 4, 2006); 3. GR: When proving fraud (Alonso v. Cebu Country Club, Inc., G.R. No. 130876, Dec. 5, 2003) XPN: Under Art. 1387 of the New Civil Code, certain alienations of property are presumed fraudulent. 4. When proving forgery (Citibank, N.A. v. Sabeniano, G.R. No. 156132, Feb. 6, 2007); 5. When proving ownership over a land in annulment or reconveyance of title (Manotok Realty, Inc. v. CLT Realty Development Corp., G.R. No. 123346, Dec. 14, 2007); 6. When invoking self-defense, the onus is on the accused-appellant to establish by clear and convincing evidence his justification for the killing (People v. Tomolin, G.R. No. 126650, July 28, 1999); 7. When proving the allegation of frame-up and extortion by police officers in most dangerous drug cases (People v. Boco, G.R. No. 129676, June 23, 1999);

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 8. When proving physical impossibility for the accused to be at the crime scene when using alibi as a defense (People v. Cacayan, G.R. No.180499, July 9, 2008); 9. When using denial as a defense like in prosecution for violation of the Dangerous Drugs Act (People v. Mustapa, G.R. No. 141244, Feb. 19, 2001); 10. To overcome the presumption of due execution of notarized instruments (Viaje v. Pamintel, G.R. No. 147792, Jan. 23, 2006); 11. When proving bad faith to warrant an award of moral damages (Resolution of the SC in Cual v. Leonis Navigation, G.R. No. 167775, Oct. 10, 2005); 12. When proving that the police officers did not properly perform their duty or that they were inspired by an improper motive (People v. Concepcion, G.R. No. 178876, June 27, 2008); or 13. When a person seeks confirmation of an imperfect or incomplete title to a piece of land on the basis of possession by himself and his predecessors-in-interest, he must prove with clear and convincing evidence compliance with the requirements of the applicable law. (Republic v. Imperial Credit Corp., G.R. No. 173088, June 25, 2008) (List of cases: Riano, Evidence: A Restatement for the Bar, pp. 422-426, 2009 ed.) B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 1. WHAT NEED NOT BE PROVED Q: What are the facts that need not be proved? A: 1. Those which the courts may take judicial notice (Rule 129); 2. Those that are judicially admitted (Rule 129); 3. Those that are conclusively presumed (Rule 131); and 4. Those that are disputably presumed but uncontradicted (Rule 131). 2. MATTERS OF JUDICIAL NOTICE

Q: What are the requisites of judicial notice? A: 1. The matter must be one of common and general knowledge; 2. It must be well and authoritatively settled and not doubtful or uncertain; and 3. It must be one which is not subject to a reasonable dispute in that it is either: a. Generally known within the territorial jurisdiction of the trial court; or b. Capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable (Expertravel & Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005). Note: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety (Ibid.). The test of notoriety is whether the fact involved is so notoriously known as to make it proper to assume its existence without proof.

Q: When is a matter considered “common knowledge”? A: They are those matters coming to the knowledge of men generally in the course of ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Note: Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. A court however cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge (Expertravel & Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005).

Q: In discretionary judicial notice, when is hearing necessary?

Q: What is judicial notice? A: It is the cognizance of certain facts which judges may properly take and act upon without proof because they are supposed to be known to them. It is based on considerations of expediency and convenience. It displaces evidence, being equivalent to proof. Note: Judicial notice fulfils the objective which the evidence intends to achieve. It is not equivalent to judicial knowledge or that which is based on the

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personal knowledge of the court; rather, it is the cognizance of “common knowledge.” Judicial notice relieves the parties from the necessity of introducing evidence to prove the fact notified. It makes evidence unnecessary.

A: DURING TRIAL

AFTER TRIAL BUT BEFORE JUDGMENT OR ON APPEAL

The court on its own initiative, or on request of a party, may announce its intention

The proper court, on its own initiative or on request of a party, may take judicial notice of any

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE to take judicial notice of any matter and allow the parties to be heard thereon (Sec. 3).

matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.

Note: Hearing is necessary in the foregoing instances to afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice or the tenor of the matter to be judicially noticed.

a. MANDATORY Q: What is mandatory notice? A: If the fact sought to be proved are: 1. Existence and territorial extent of States; 2. Political history, forms of government and symbols of nationality; 3. Law of nations; 4. Admiralty and maritime courts of the world and their seals; 5. Political constitution and history of the Philippines; 6. Official acts of legislative, executive and judicial departments of the Philippines; 7. Laws of nature; 8. Measure of time; and 9. Geographical divisions (Sec. 1). b. DISCRETIONARY Q: What is discretionary notice? A: Discretionary – a court may take judicial notice of matters which are: 1. Of public knowledge; 2. Capable of unquestionable demonstration; or 3. Ought to be known to judges because of their judicial functions (Sec. 2). 3. JUDICIAL ADMISSIONS Q: What is judicial admission? A: It is an admission, verbal or written, made by a party in the course of the proceedings in the same case, which does not require proof (Sec. 4). Q: What are the elements of judicial admission? A: 1. It must be made by a party to the case or his counsel; 2. It must be made in the course of the proceedings in the same case; and

3. It can be verbal or written admission. There is no particular form required. Q: Distinguish judicial admission from extrajudicial admission. A: JUDICIAL ADMISSIONS Those made in the course of the proceeding in the same case Do not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Judicial admissions need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established. Conclusive upon the admitter Admissible even if selfserving Subject to crossexamination

EXTRAJUDICIAL ADMISSIONS Those made out of court or in a judicial proceeding other than the one under consideration Regarded as evidence and must be offered as such, otherwise the court will not consider it in deciding the case.

Requires formal offer for it to be considered

Rebuttable Not admissible if selfserving Not subject to crossexamination

Q: When are judicial admissions made? A: It may be made by the party himself or by his counsel: 1. In the pleadings filed by the parties; 2. In the course of the trial either by verbal or written manifestations or stipulations, including depositions, written interrogatories and requests for admissions; or 3. In other stages of the judicial proceedings, as in pre-trial. Q: What remedy is available to a party who gave a judicial admission? A: 1. Written admission – File a motion to withdraw such pleading, or any other written instrument containing such admission. 2. Oral admission – The counsel may move for the exclusion of such admission.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What are the rules on admissions made in pleadings? A: GR: The facts alleged in a party’s pleadings are deemed admissions and are binding upon that party. XPN: Hypothetical admissions made by party litigant, as when a defendant moves to dismiss the case based on lack of jurisdiction or sets up affirmative defenses.

A: Yes. Admissions made in the pre-trial are deemed judicial admissions because they are made in the course of the proceedings of the case. (Riano, Evidence: A Restatement for the Bar, p. 104, 2009 ed.) a. EFFECT OF JUDICIAL ADMISSIONS Q: What are the consequences of judicial admissions? A: 1.

Note: Admissions in a pleading which had been withdrawn or superseded by an amended pleading, although filed in the same case, are considered as extrajudicial admissions. The original must be proved by the party who relies thereon by formally offering it in evidence (Torres v. CA, G.R. Nos. L-37420-21, July 31, 1984).

2.

Note: Justice Regalado opines that as amended, it would appear that Sec. 4, Rule 129 includes superseded pleadings as judicial admissions (Regalado, Vol. II, p. 837, 2005 ed.).

Q: What are the rules on admissions made in pleadings which were not filed with the court? A: 1. If signed by the party litigant himself – considered as extrajudicial admission. 2. If signed by the counsel – not admissible because a counsel only binds his client with respect to admissions in open court and in pleadings actually filed with the court. Q: What is self-serving evidence? A: No. The self-serving rule which prohibits the admission of declaration of a witness applies only to extrajudicial admissions. If the declaration is made in open court, such is raw evidence. It is not self-serving. It is admissible because the witness may be cross-examined on that matter. Q: Are judicial admissions made by the accused during his arraignment binding upon him? A: No. A plea of guilty entered by the accused may be later withdrawn at any time before the judgment of conviction becomes final. Such plea is not admissible in evidence against the accused and is not even considered as an extrajudicial admission. Q: Are admissions made during a pre-trial in a civil case considered as judicial admissions?

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A party who judicially admits a fact cannot later challenge that fact as judicial admissions constitute waiver of proof; production of evidence is dispensed with; No evidence is needed to prove a judicial admission and it cannot be contradicted unless it is shown to have been made through palpable mistake or that no such admission was made. b. HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED

Q: How can judicial admission be contradicted? A: It may be contradicted by showing: 1. That it was made through palpable mistake; 2. That no such admission was made (Sec. 4); or 3. To prevent manifest injustice (e.g. pre-trial in civil cases, Sec. 7, Rule 18). 4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Q: May courts take judicial notice of foreign laws? A: GR: Foreign laws may not be taken judicial notice of, and have to be proved like any other fact. XPN: When said laws are within the actual knowledge of the court and such laws are: 1. Well and generally known; 2. Actually ruled upon in other cases before it; and 3. None of the parties claim otherwise. Q: Suppose a foreign law was pleaded as part of the defense of the defendant but no evidence was presented to prove the existence of said law, what is the presumption to be taken by the court as to the wordings of said law? A: The doctrine of processual presumption applies. The presumption is that the wordings of the foreign

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE law are the same as the local law (doctrine of processual presumption) (Northwest Orient Airlines v. CA, G.R. No. 83033, June 8, 1990; Moran, Vol. 6, p. 34, 1980 ed.). (1997 Bar Question) Q: What are the rules with regard to judicial notice of ordinances? A: 1. MTCs are required to take judicial notice of the ordinances of the municipality or city wherein they sit. 2. RTCs must take judicial notice only: a. When expressly authorized to do so by statute; or b. In case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in the same case. 3. Appellate courts may also take judicial notice of ordinances not only because the lower courts took judicial notice thereof but because these are facts capable of unquestionable demonstration. (Riano, Evidence: A Restatement for the Bar, pp. 9091, 2009 ed.) Q: What is the rule on judicial notice of records of another case previously tried? A: GR: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. (Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, Apr. 28, 2005) XPNS: 1. When in the absence of any objection, with the knowledge of the opposing party, the contents of said other cases are clearly referred to by title and number in a pending action and adopted or read into the record of the latter; 2. When the original record of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case. (Jumamil v. Cafe, G.R. No. 144570, Sept. 21, 2005)

3. When the action is closely interrelated to another case pending between the same parties; 4. Where the interest of the public in ascertaining the truth are of paramount importance; 5. In cases seeking to determine what is reasonable exercise of discretion or whether or not the previous ruling is applicable in a case under consideration; or 6. Where there is finality of a judgment in another case that was previously pending determination and therefore, res judicata. (Herrera, Vol. V, pp. 89-90, 1999 ed.) Q: Anna and Badong were accused of killing Cathy. However, only Anna was arrested since Badong went in to hiding. After trial, Anna was acquitted of the charge in a decision rendered by Judge Santos. Subsequently, Badong was arrested and brought to trial. After trial, Badong was found guilty of homicide in a decision rendered by Judge Yantok, the judge who replaced Judge Santos after the latter retired. On appeal, Badong argues that Judge Yantok should have taken judicial notice of the acquittal of Anna rendered by Judge Santos. Is Badong correct? A: No. The appreciation of one judge of the testimony of a certain witness is not binding on another judge who heard the testimony of the same witness on the same matter. Each magistrate who hears the testimony of a witness is called upon to make his own appreciation of the evidence. It is, therefore, illogical to argue that because one judge made a conclusion in a certain way with respect to one or more of the accused; it necessarily dictates that the succeeding judge who heard the same case against the other accused should automatically make the same conclusion (People v. Langit, G.R. Nos. 134757-58, Aug. 4, 2000). Note: All courts must take judicial notice of the decisions of the Supreme Court as they are duty bound to know the rulings of the highest tribunal and to apply them in the adjudication of cases, jurisprudence being a part of our judicial system

C. OBJECT (REAL) EVIDENCE 1. NATURE OF OBJECT EVIDENCE Q: Define object evidence. A: Object evidence, also known as real evidence, demonstrative evidence, autoptic preference and physical evidence, is that evidence which is addressed to the senses of the court (Sec. 1). It is not limited to the view of an object. It extends to

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 the visual, auditory, tactile, gustatory, and olfactory. It is considered as evidence of the highest order.

object in question as to render a view thereof unnecessary. (Regalado, Vol. II, p. 716, 2008 ed.)

Q: What are the purposes of authentication of object evidence?

Q: Is exhibition of the object which is repulsive or indecent absolutely prohibited?

A:

A: No. If a view of the object is necessary in the interest of justice, such object may still be exhibited, but the court may exclude the public from such view. Such view may not be refused if the indecent or immoral objects constitute the very basis of the criminal or civil action (e.g. obscene pictures or exhibits). (Moran, p. 73)

1. Prevent the introduction of an object different from the one testified about; and 2. Ensure that there has been no significant changes in the object’s condition. 2. REQUISITES FOR ADMISSIBILITY Q: What are the requisites for the object evidence to be admissible? A: It must 1. Be relevant to the fact in issue; 2. Be authenticated before it is admitted; 3. Not be hearsay; 4. Not be privileged; and 5. Meet any additional requirement set by law. Q: What does object evidence include? A: 1. 2. 3. 4.

Any article or object which may be known or perceived by the use of the senses; Examination of the anatomy of a person or of any substance taken therefrom; Conduct of tests, demonstrations or experiments; and Examination of representative portrayals of the object in question (e.g. maps, diagrams)

Q: May the courts refuse the introduction of object or real evidence and rely on testimonial evidence alone? A: Yes, but only if: 1. Its exhibition is contrary to public morals or decency; 2. To require its being viewed in court or in ocular inspection would result in delays, inconvenience, or unnecessary expenses which are out of proportion to the evidentiary value of such object; 3. Such object evidence would be confusing or misleading, as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in said condition; or 4. The testimonial or documentary evidence already presented clearly portrays the

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Q: In a criminal case for murder, the prosecution offered as evidence photographs showing the accused mauling the victim with several of the latter’s companions. The person who took the photograph was not presented as a witness. Be that as it may, the prosecution presented the companions of the victim who testified that they were the ones in the photographs. The defense objected to the admissibility of the photographs because the person who took the photographs was not presented as witness. Is the contention of the defense tenable? A: No. Photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses who can testify to its exactness and accuracy, after which the court can admit it subject to impeachment as to its accuracy. Here, the photographs are admissible as evidence inasmuch as the correctness thereof was testified to by the companions of the victim (Sison v. People, G.R. Nos. 108280-83, Nov. 16, 1995). Q: Ron was charged with murder for shooting Carlo. After trial, Ron was found guilty as charged. On appeal, Ron argued that the trial court should have acquitted him as his guilt was not proved beyond reasonable doubt. He argues that the paraffin test conducted on him 2 days after he was

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE arrested yielded a negative result. Hence, he could not have shot Carlo. Is Ron correct? A: No. While the paraffin test was negative, such fact alone did not ipso facto prove that Ron is innocent. A negative paraffin result is not conclusive proof that a person has not fired a gun. It is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards. Here, since Ron submitted himself for paraffin testing only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom (People v. Brecinio, G.R. No. 138534, Mar. 17, 2004). 3. CATEGORIES OF OBJECT EVIDENCE Q: What are the categories of object evidence for purposes of authentication? A: 1. Unique objects – those that have readily identifiable marks (e.g. a calibre 40 gun with serial number XXX888) 2. Objects made unique – those that are readily identifiable (e.g. a bolo knife used to hack a victim which could be identified by a witness in court) 3. Non-unique objects – those which have no identifying marks and cannot be marked (e.g. footprints left at a crime scene) 4. DEMONSTRATIVE EVIDENCE Q: Distinguish real evidence from demonstrative evidence. A: Real evidence Tangible object that played some actual role in the matter that gave rise to the litigation Intends to prove that the object is used in the underlying event

Demonstrative Evidence Tangible evidence that merely illustrates a matter of importance in the litigation Intends to show that the demonstrative object fairly represents or illustrates what it is alleged to be illustrated

5. VIEW OF AN OBJECT OR SCENE Q: What is ocular inspection or “view”? A: An ocular inspection conducted by the judge without the presence of the parties or due notice is not valid, as an ocular inspection is part of the trial.

Note: It is a discretionary act of the trial court to go to the place where the object is located, when the object evidence cannot be brought in courts.

6. CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Q: What is Chain of Custody Rule in relation to Sec. 21 of the Comprehensive Dangerous Drugs Act of 2002? A: It is a method of authenticating evidence. It requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. (Lopez v. People, G.R. No. 172953, Apr. 30, 2008) Q: When is there a need to establish a chain of custody? A: It is necessary when the object evidence is nonunique as it is not readily identifiable, was not made identifiable or cannot be made identifiable, e.g. drops of blood or oil, drugs in powder form, fiber, grains of sand and similar objects. (Riano, Evidence: A Restatement for the Bar, p. 149, 2009 ed.) Q: What is the purpose of establishing a chain of custody? A: To guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic but where the exhibit is positively identified the chain of custody of physical evidence is irrelevant. (Ibid.) 7. RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC) Q: In what cases do the Rules on DNA Evidence apply? A: It shall apply whenever DNA evidence is offered, used, or proposed to be offered or used as evidence

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 in all criminal and civil actions as well as special proceedings (Sec. 1). a. MEANING OF DNA Q: What is DNA? A: DNA (deoxyribonucleic acid) is the chain of molecules found in every nucleated cell of the body (Sec. 3, Rule on DNA Evidence). It is the fundamental building block of a person’s entire genetic make-up, which is found in all human cells and is the same in every cell of the same person (People v. Umanito, G.R. No. 172607, Oct. 26, 2007). Q: What is DNA evidence? A: It constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples (Sec. 3).

A: In pending actions, the appropriate court may, at any time issue a DNA testing order either motu proprio or upon application of any person who has a legal interest in the matter in litigation after due hearing and notice to the parties and upon showing of the following: 1. A biological sample exists that is relevant to the case; 2. The biological sample: 3. was not previously subjected to the type of DNA testing now requested; or 4. was previously subjected to DNA testing, but the results may require confirmation for good reasons; 5. The DNA testing uses a scientifically valid technique; 6. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and 7. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing (Sec. 4).

Q: What is DNA testing? A: It means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (Kinship Analysis) (Sec. 3). Note: The scientific basis of this test comes from the fact that our differences as individuals are due to the differences in the composition of our genes. These genes comprise a chemical substance, the deoxyribonucleic acid or DNA [The Court Systems Journal (1999)].

b. APPLICATION FOR DNA TESTING ORDER Q: May DNA testing be conducted absent a prior court order? A: Yes. The Rules on DNA Evidence does not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced (Sec. 4). Q: What are the requisites for the issuance of a DNA testing order?

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Q: Is the order granting the DNA testing appealable? A: No. An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Sec. 5). Q: During Alexis’ trial for rape with murder, the prosecution sought to introduce DNA evidence against him, based on forensic laboratory matching of the materials found at the crime scene and Alexis’ hair and blood samples. Alexis’ counsel objected, claiming that DNA evidence is inadmissible because the materials taken from Alexis were in violation of his constitutional right against self-incrimination as well as his right of privacy and personal integrity. Should the DNA evidence be admitted or not? Reason. A: The DNA evidence should be admitted. It is not in violation of the constitutional right against selfincrimination or his right of privacy and personal integrity. The right against self-incrimination is applicable only to testimonial evidence. Extracting a blood sample and cutting a strand from the hair of the accused are purely mechanical acts that do not involve his discretion nor require his intelligence. (2004 Bar Question)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE Q: Is the result of DNA testing automatically admitted as evidence in the case in which it was sought for? A: No. The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof (Sec. 5). Q: If a DNA test was conducted, what are the possible results that it may yield? A: 1. The samples are similar, and could have originated from the same source (Rule of Inclusion). In such a case, the analyst proceeds to determine the statistical significance of the similarity. 2. The samples are different hence it must have originated from different sources (Rule of Exclusion). This conclusion is absolute and requires no further analysis; 3. The test is inconclusive. This might occur due to degradation, contamination, failure of some aspect of protocol, or some other reasons. Analysis might be repeated to obtain a more conclusive result (People v. Vallejo, G.R. No. 144656, May 9, 2002).

2. Such sample is relevant to the case; and 3. The testing would probably result in the reversal or modification of the judgment of conviction (Sec. 6). Q: What is the remedy of the convict if the postconviction DNA testing result is favorable to him? A: The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause (Sec. 10). d. ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY Q: What should the courts consider in determining the probative value of DNA evidence? A: 1. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; 2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; 3. The forensic DNA laboratory, including accreditation by any reputable standardssetting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and 4. The reliability of the testing result (Sec. 7).

Q: What should the courts consider in evaluating DNA testing results? A: 1. The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; 2. The results of the DNA testing in the light of the totality of the other evidence presented in the case; and 3. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity (Sec. 9). c. POST-CONVICTION DNA TESTING; REMEDY Q: To whom is the post-conviction DNA testing available? A: Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment. Q: What are the requisites for the applicability of the Post-conviction DNA testing? A: 1. Existing biological sample;

Q: What are the things to be considered in assessing the probative value of DNA evidence? A: 1. How the samples are collected; 2. How they were handled; 3. The possibility of the contamination of the samples; 4. The procedure followed in analyzing the samples; 5. Whether the proper standards and procedures were followed in conducting the tests; and 6. The qualification of the analyst who conducted the tests. (Ibid.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 e. RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGY Q: What are the things to be considered in evaluating whether or not the DNA testing methodology is reliable?

A: 1. 2. 3. 4.

The document must be relevant; The evidence must be authenticated; The document must be authenticated by a competent witness; and The document must be formally offered in evidence.

A: 1.

2. 3.

4.

5. 6.

The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; The subjection to peer review and publication of the principles or methods; The general acceptance of the principles or methods by the relevant scientific community; The existence and maintenance of standards and controls to ensure the correctness of data generated; The existence of an appropriate reference population database; and The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles. D. DOCUMENTARY EVIDENCE

1. MEANING OF DOCUMENTARY EVIDENCE Q: Define Documentary Evidence. A: 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). Q: May a private document be offered and admitted in evidence both as documentary evidence and as object evidence? Explain. A: Yes. A private document is considered as object evidence when it is addressed to the senses of the court or when it is presented in order to establish certain physical evidence or characteristics that are visible on the paper and the writings that comprise the document. It is considered as documentary evidence when it is offered as proof of its contents. (2005 Bar Question) 2. REQUISITES FOR ADMISSIBILITY Q: What are the requisites for admissibility of documentary evidence?

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3. BEST EVIDENCE RULE a. MEANING OF THE RULE Q: What is Best Evidence Rule? A: GR: It provides that when the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original document itself. XPNs: 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; Note: The voluminous records must be made accessible to the adverse party so that the correctness of the portion produced or summary of the document may be tested on cross-examination.

4.

When the original is a public record in the custody of a public officer or is recorded in a public office (Sec. 3) Note: Where the issue is only as to whether such a document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible.

b. WHEN APPLICABLE Q: When is this applicable? A: The rule will come into play only “when the subject of inquiry is the contents of a document.”

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE Q: Why is the best evidence rule often described as a misnomer? A: Because it merely requires the best evidence available and, in the absence thereof, allows the introduction of secondary evidence. Alternative Answer: It is a misnomer because it is applicable only to documentary evidence and not to testimonial and object evidence. (1994 Bar Question) Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked P100.00 bills used in the “buy-bust” operation. Ace objects to the introduction of the photocopy on the ground that the best evidence rule prohibits the introduction of secondary evidence in lieu of the original. 1. Is the photocopy real (object) evidence or documentary evidence? 2. Is the photocopy admissible in evidence? A: 1.

2.

It is real (object) evidence, because the marked bills are real evidence. Yes, it is admissible in evidence, because the best evidence rule does not apply to object or real evidence. The best evidence rule is inapplicable since such secondary evidence is only intended to establish the existence of a transaction and not the contents of the document. (1994 Bar Question)

Q: Are affidavits and depositions considered as best evidence? A: No, hence, not admissible if the affiants and witnesses are available as witnesses. (Regalado, Vol. II, p. 721, 2008 ed.) Q: What is the best evidence of telegrams and cables? A: It depends on the issue to be proved. 1. Contents of the telegram received by the addressee: the original dispatch received. 2. The telegram sent by the sender: the message delivered for transmission. 3. Inaccuracy of transmission of the telegram: both telegrams as sent and received (Regalado, Vol. II, pp. 722-723, 2008 ed.). Q: In a civil case for collection of money, Paula sought to escape liability from a promissory note by showing that the same was a forgery. She

presented an expert witness to prove that her signature in the promissory note was forged. Jean objected to the presentation of Paula’s expert witness on the ground that the finding of said witness is based on a mere photocopy of the promissory note. Is the objection of Jean tenable? A: Yes. As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. The best evidence of a forged signature in an instrument is the instrument itself reflecting the alleged forged signature. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized upon to have been forged. Without the original document containing the alleged forged signature, one cannot make a definitive comparison which would establish forgery. A comparison based on a mere photocopy or reproduction of the document under controversy cannot produce reliable results (Heirs of Gregorio v. CA, G.R. No. 117609, Dec. 29, 1998). Q: When Anna loaned a sum of money to Blair, Anna typed a single copy of the promissory note, which they both signed. Anna made two photocopies of the promissory note, giving one copy to Blair and retaining the other copy. Anna entrusted the typewritten copy to his counsel for safekeeping. The copy with Anna's counsel was destroyed when the law office was burned. 1. In an action to collect on the promissory note, which is deemed to be the "original" copy for the purpose of the best evidence rule? 2. Can the photocopies in the hands of the parties be considered "duplicate original copies"? 3. As counsel for Anna, how will you prove the loan given by Anna to Blair? A: 1. The copy that was signed and lost is the only "original" copy for purposes of the best evidence rule (Sec. 4 [b]). 2. No, because they merely are photocopies which were not signed (Mahilum v. CA, G.R. No. L-17970, July 10, 1966), They constitute secondary evidence (Sec. 5). 3. It may be proved by secondary evidence through the photocopies of the promissory note. When the original document is lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated (Sec. 5). (1997 Bar Question) Q: Car was declared in default by the MTC in an action for unlawful detainer. Plaintiff, Loise was allowed to present evidence in support of her complaint. Photocopies of official receipts and original copies of affidavits were attached to the position paper submitted by Loise. Said documents were offered by Loise and admitted in evidence by the court on the basis of which the court rendered judgment in favor of Loise. Car appealed to the RTC claiming that the judgment is not valid because the MTC based its judgment on mere photocopies and affidavits of persons not presented in court. Is the claim of Car valid? Explain. A: Yes, although the rules on summary procedure requires merely the submission of position papers, the evidence submitted with the position paper must be admissible in evidence. Photocopies of official receipts and affidavits are not admissible in evidence without proof of loss of the originals. (2000 Bar Question) Q: What is the Collateral Facts Rule? A: It states that a document or writing which is merely “collateral” to the issue involved in the case on trial need not be proved. Where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented. c. MEANING OF ORIGINAL Q: What is an original document? A: There are three concepts of “original” document: 1. The original of a document is one the contents of which are the subject of inquiry; 2. When a document is in 2 or more copies executed at or about the same time, with identical contents, including signed carbon copies, all such copies are equally regarded as originals; or 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, including entries in journals and

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ledgers, all the entries are likewise equally regarded as originals (Sec. 4). Q: What is the rule on duplicate original? A: It states that when a document is in two or more copies executed at or about the same time with identical contents, all such copies are equally regarded as originals (Sec. 4b, Rule 130). It may be introduced in evidence without accounting for the non-production of the other copies.

d. REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE Q: What is secondary evidence? A: Secondary evidence is that which shows that better or primary evidence exists as to the proof of the fact in question. It is the class of evidence that is relevant to the fact in issue, it being first shown that the primary evidence of the fact is not obtainable. It performs the same functions as that of primary evidence. (Francisco, p. 68, 1992 ed.) Note: All originals must be first accounted for before one can resort to secondary evidence. It must appear that all of them have been lost or destroyed or cannot be produced in court. The non-production of the original document, unless it falls under any of the exceptions in Sec. 3, Rule 130, gives rise to the presumption of suppression of evidence.

Q: When may secondary evidence be admitted? A: It may be admitted only by laying the basis for its production and such requires compliance with the following: 1. The offeror must prove the due execution and existence of the original document; 2. The offeror must show the cause of its unavailability; and 3. The offeror must show that the unavailability was not due to his bad faith. Accordingly, the correct order of proof is as follows: existence, execution, loss, and contents. This order may be changed if necessary at the sound discretion of the court. (Citibank N.A. Mastercard v. Teodoro, G.R. No. 150905, Sept. 23, 2003) Note: Intentional destruction of the originals by a party who acted in good faith does not preclude the introduction of secondary evidence of the contents thereof.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE Q: What is the order of presentation of secondary evidence?

3. Any person who heard when the document was being read; 4. Any person who was present when the contents of the document were talked over by the parties to such an extent as to give him reasonably full information of the contents; or 5. Any person to whom the parties have stated or confessed the contents thereof.

A: 1. Copy of the original; 2. A recital of the contents of the document in some authentic document; or 3. By the testimony of witnesses (Sec. 5, Rule 130) Q: What is Definite Evidentiary Rule? A: Where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling. E.g. Evidence of a lost notarial will should consist of a testimony of at least two credible witnesses who can clearly and distinctly establish its contents (Sec. 6, Rule 76). Q: How may the due execution of the document be proved?

Q: May the presentation or the offer of the original be waived? A: Yes, if the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence. But even admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Its admissibility should not be confused with its probative value. (Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384, Oct. 21, 1998)

A: It may be proved through the testimony of: 1. The person who executed it; 2. The person before whom its execution was acknowledged; 3. Any person who was present and saw it executed and delivered; 4. Any person who thereafter saw and recognized the signature; 5. One to whom the parties thereto had previously confessed the execution thereof; or 6. By evidence of the genuineness of the signature or handwriting of the maker. (Sec. 20, Rule 132)

Q: What facts must be shown by the party offering secondary evidence if the original is in the custody of the adverse party?

Q: How may the loss or destruction be proved?

Note: The party who called for a document is not obliged to offer it into evidence (Sec. 8).

A: It may be proved by: 1. Any person who knew of such fact; 2. Anyone who, in the judgment of the court, had made sufficient examination in the places where the document or papers of similar character are usually kept by the person in whose custody the document was and has been unable to find it; or 3. Any person who has made any other investigation which is sufficient to satisfy the court that the document is indeed lost.

A: 1. 2.

3. 4.

Original is in the possession or under the control of the opponent; Demand or notice is made to him by the proponent signifying that the document is needed; Failure or refusal of opponent to produce document in court; and Satisfactory proof of existence of document (Sec. 6).

Q: What is the form of notice required to be given to the adverse party? A: No particular form of notice is required as long as it fairly appraises the other party as to what papers are desired. Even an oral demand in open court for such production at a reasonable time thereafter will suffice. Such notice must, however, be given to the adverse party, or his attorney, even if the document is in the actual possession of a third person. (Regalado, Vol. II, p. 726, 2008 ed.)

Q: How may the contents be proved? A: They may be proved by the testimony of: 1. Any person who signed the document; 2. Any person who read it;

Q: What is the effect if the refusal or failure of the adverse party to produce the original is justified? A: It does not give rise to the presumption of suppression of evidence, or create an unfavorable

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 inference against him. It only authorizes the presentation of secondary evidence. (Regalado, Vol. II, p. 727, 2008 ed.) Q: Paula filed a complaint against Lynette for the recovery of a sum of money based on a promissory note executed by Lynette. Paula alleged in her complaint that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Paula is willing, she may, upon request of Lynette give the latter up to 120 days to pay the note. During the hearing, Paula testified that the truth is that the agreement between her and Lynette is for the latter to pay immediately after 90 days time. Also, since the original note was with Lynette and the latter would not surrender to Paula the original note which Lynette kept in a place about one day's trip from where she received the notice to produce the note and in spite of such notice to produce the same within 6 hours from receipt of such notice, Lynette failed to do so. Paula presented a copy of the note which was executed at the same time as the original and with identical contents. 1.

2.

Over the objection of Lynette, will Paula be allowed to testify as to the true agreement or contents of the promissory note? Why? Over the objection of Lynette, can Paula present a copy of the promissory note and have it admitted as valid evidence in her favor? Why?

A: 1.

2.

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Yes. As an exception to the parol evidence rule, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading the failure of the written agreement to express the true intent and agreement of the parties thereto. Here, Paula has alleged in her complaint that the promissory note does not express the true intent and agreement of the parties. Yes. The copy in possession of Paula is a duplicate original because it was executed at the same time as the original and with identical contents. Moreover, the failure of Lynette to produce the original of the note is excusable because she was not given reasonable notice, a requirement under the Rules before secondary evidence may be presented. (2001 Bar Question)

Note: The promissory note is an actionable document and the original or a copy thereof should have been attached to the complaint. (Sec. 7, Rule 8) In such a case, the genuineness and due execution of the note, if not denied under oath, would be deemed admitted. (Sec. 8, Rule 9)

Q: When Linda died, her common law husband, Lito and their alleged daughter Nes executed an extrajudicial partition of Linda’s estate. Thereafter, the siblings of Linda filed an action for partition of Linda’s estate and annulment of titles and damages with the RTC. The RTC dismissed the complaint and rendered that Nes was the illegitimate daughter of the decedent and Lito based solely on her birth certificate, which on closer examination, reveals that Nes was listed as “adopted” by both Linda and Lito. Is the trial court correct? A: No. The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts to simulation of the child's birth or falsification of his or her birth certificate, which is a public document. Furthermore, a record of birth is merely a prima facie evidence of the facts contained therein. It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. Nes should have adduced evidence of her adoption, in view of the contents of her birth certificate. The records however are bereft of any such evidence (Rivera v. Heirs of Villanueva, G.R. No. 141501, July 21, 2006). Q: What are the requisites for the admission of secondary evidence when the original consists of numerous accounts? A: 1. The original must consist 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. 3c, Rule 130) Note: Secondary evidence may consist of a summary of the voluminous documents or records. (Herrera, Vol. V, p. 203, 1999 ed.) Such records must 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, et.al., G.R. No. L-28999, May 24, 1977)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE

Q: How may the contents of the document be proved when the original is in the custody of a public officer? A: The contents may be proved by: 1. A certified copy issued by the public officer in custody thereof (Sec. 7, Rule 130); and 2. Official publication. (Herrera, Vol. V, p. 203, 1999 ed.) Q: What is the effect of not offering a document in evidence after calling for its production and inspection? A: If the party who calls for the production of a document does not offer the same in evidence, no unfavorable inference may be drawn from such failure. This is because a party who calls for the production of a document is not required to offer it. (Sec. 8, Rule 130) Q: What are the distinctions between the production of documents under Sec. 8, Rule 130 and Rule 27 (mode of discovery)? A: SEC. 8, RULE 130 Procured by mere notice to the adverse party, which is a condition precedent for the subsequent introduction of secondary evidence by the proponent. Presupposes that the document to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents.

RULE 27 The production of document is in the nature of a mode of discovery and can be sought only by proper motion in the trial court and is permitted only upon good cause shown. Contemplates a situation wherein the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same.

4. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 017-01-SC) Q: In what cases do the Rules on Electronic Evidence applies?

A: 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 the Rules on Electronic Evidence (Sec. 2, Rule 3). a. MEANING OF ELECTRONIC EVIDENCE; ELECTRONIC DATA MASSAGE Q: What is Electronic Evidence? A: According to Black's Law Dictionary, evidence is "any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc. for the purpose of inducing belief in the minds of the court or jury as to their contention." Electronic information (like paper) generally is admissible into evidence in a legal proceeding..

Q: What is Electronic Data Message? A: Electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means. b. PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD OF PROOF Q: What are the factors to be considered in assessing evidentiary weight of an electronic document? A: 1.

2. 3.

A: It shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases (Sec. 2, Rule 1). 4. Q: State the rule on the admissibility of electronic evidence.

The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; The reliability of the manner in which its originator was identified; The integrity of the information and communication system in which it its recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; The familiarity of the witness or the person who made the entry with the communication and information system;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5.

6.

The nature and quality of the information which went into the communication and information system upon which the electronic data message document was based; or Other factors which the court may consider as affecting accuracy or integrity of the electronic document or electronic data message. (Sec. 1, Rule 7)

C. AUTHENTICATION OF ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES

1. 2.

3.

The electronic signature is that of the person to whom it correlates; The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; and The methods or processes utilized to affix or verify the electronic signature operated without error or fault (Sec. 3, Rule 6).

Q: What is a Digital Signature? Q: How is an electronic document authenticated? A: 1.

2.

3.

By evidence that it had been digitally signed by the person purported to have signed the same; By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or By other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2, Rule 5).

A: It refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine: 1. whether the transformation was created using the private key that corresponds to the signer’s public key; and 2. whether the initial electronic document had been altered after the transformation was made [Sec. 1(e), Rule 2] Q: What is the effect of authentication of digital signatures?

Q: What is Electronic Signature? A: It refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures [Sec. 1 (j), Rule 2].

A: Upon authentication, it shall be presumed that: 1. The information contained in a certificate is correct; 2. The digital signature was created during the operational period of a certificate; 3. No cause exists to render a certificate invalid or revocable; 4. The message associated with a digital signature has not been altered from the time it was signed; and 5. A certificate had been issued by the certification authority indicated therein (Sec. 4, Rule 6).

Q: How is an electronic signature authenticated? d. ELECTRONIC DOCUMENTS AND THE HEARSAY RULE

A: 1.

2. 3.

By evidence that a method or process was utilized to establish a digital signature and verify the same; By any other means provided by law; or By any other means satisfactory to the judge as establishing the genuineness of the electronic signature (Sec. 2, Rule 6).

Q: What is the effect of authentication of an electronic signature? A: Upon authentication, it shall be presumed that:

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Q: When is the Hearsay Rule not applicable to electronic documents? A: A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence (Sec. 1, Rule 8). Note: The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof (Sec. 2, Rule 8).

e. AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE Q: May parties present audio, photographic or video evidence? Discuss. A: Yes. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11). Q: What is ephemeral electronic communication? A: It refers to telephone conversations, text messages, chat room sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. [Sec. 1(k)] Q: Are text messages admissible as evidence? A: Yes. Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof (Vidallon-Magtolis v. Cielito Salud, A.M. No. CA-05-20-P, Sept. 9, 2005). Q: How shall ephemeral electronic communication be proven? A: It shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 regarding Authentication of Electronic Documents shall apply. (Sec. 2, Rule 11)

5. PAROL EVIDENCE RULE Q: What is Parol Evidence? A: It is any evidence aliunde (extrinsic evidence) which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document (Regalado, Vol. II, p. 730, 2008 ed.). It may refer to testimonial, real or documentary evidence. Q: What is the rationale of the parol evidence rule? A: 1. 2. 3.

To give stability to written statements; To remove the temptation and possibility of perjury; and To prevent possible fraud.

Q: Distinguish the kinds of ambiguities. A: INTRINSIC OR LATENT On its face, the writing appears clear and unambiguous but there are collateral matters which make the meaning uncertain Curable by evidence aliunde

EXTRINSIC OR PATENT

INTERMEDIATE

Ambiguity is apparent on the face of the writing and requires that something be added to make the meaning certain

Ambiguity consists in the use of equivocal words susceptible of two or more interpretation

Cannot be cured by evidence aliunde

Curable by evidence aliunde

Q: What is the principle of “falsa demonstratio non nice cum de corpore constat”? A: It literally means “an erroneous description does not spoil the act”. It states that the false description does not injure or vitiate a document if the subject is sufficiently identified. The incorrect description shall be rejected as surplusage while the correct and complete description standing alone shall sustain the validity of the writing (Regalado, Vol. II, p. 735, 2008 ed.). Parol evidence is admissible to prove mistake in the execution of a written instrument. Q: May a condition precedent and a condition subsequent be established by parol evidence? A: Condition precedent may be established by parol evidence because there is no varying of the terms

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 of the written contract by extrinsic agreement for the reason that there is no contract in existence. There is nothing in which to apply the excluding rule. Conditions subsequent may not be established by parol evidence since a written contract already exists. a. APPLICATION OF THE PAROL EVIDENCE RULE Q: What are the requisites for the application of the parol evidence rule?

the execution of the written agreement. (Sec. 9) c. DISTINCTIONS BETWEEN THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE Q: Distinguish parol evidence rule from best evidence rule. A: PAROL EVIDENCE RULE Presupposes that the original document is available in court

A: 1. 2. 3. 4.

There must be a valid contract; The terms of the agreement must be reduced to writing; The dispute is between the parties or their successors-in-interest; and There is dispute as to the terms of the agreement.

b. WHEN PAROLE EVIDENCE CAN BE INTRODUCED Q: What is Parol Evidence Rule? A: It states that 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-ininterest, no evidence of such terms other than the contents of the written agreement (Sec. 9). Note: Parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy of a party to the written instrument in question and does not base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he is not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L40300, Aug. 6, 1986)

Prohibits the varying of the terms of a written agreement

Applies only to documents Applies to all kinds of which are contractual in writings nature except wills Can be invoked only when the controversy is Can be invoked by any between the parties to the party to an action whether written agreement, their he has participated or not privies, or any party in the writing involved affected thereby like a cestui que trust

6. AUTHENTICATION AND PROOF OF DOCUMENTS (RULE 132) Q: When is authentication of documents not required? A: 1. 2.

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The writing is an ancient document (Sec. 21); GR: The writing is a public document or record (Sec. 19); XPN: A private document required by law to be recorded – while they are public documents, the public writing is not the writing itself but the “public record” thereof. Such recording does not make the private writing itself a public document so as to make it admissible without authentication.

Q: What are the exceptions to the parol evidence rule? A: A party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleadings the following: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. Failure of the written agreement to express the true intent of the parties thereto; 3. Validity of the written agreement; or 4. Existence of other terms agreed to by the parties or their successors in interest after

BEST EVIDENCE RULE The original document is not available or there is a dispute as to whether said writing is original Prohibits the introduction of secondary evidence in lieu of the original document regardless of whether or not it varies the contents of the original

3. 4.

The writing is a notarial document acknowledged, proved or certified (Sec. 30); The authenticity and due execution of the document has been expressly admitted or impliedly admitted by failure to deny the same under oath; or

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 5.

When such genuineness and due execution are immaterial to the issue.

of its genuineness and due execution

authentic is received in evidence, its due execution and authenticity must be proved either:

1.

By anyone who saw the document executed or written; or By evidence of the genuineness of the signature or handwriting of the maker.

a. MEANING OF AUTHENTICATION Q: What is authentication? A: It is proving the due execution and genuineness of the document. 2.

Q: What is document? A: It is a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb. 27, 1970)

Any other private document need only be identified as that which it is claimed to be (Sec. 20).

b. PUBLIC AND PRIVATE DOCUMENTS Q: What are public and private documents. A: Public documents are: 1. The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2. Documents acknowledge before a notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to the entered therein. Note: All other writings are private. (Sec. 19)

Q: Distinguish the classes of documents. A: PUBLIC DOCUMENT PRIVATE DOCUMENT What comprises it 1. The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2. Documents All other writings are acknowledged before a private (Sec. 19). notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to be entered therein (Sec. 19). As to authenticity and admissibility as evidence Admissible as evidence Before any private without need of further proof document offered as

As to persons bound Binds only the parties who executed them Evidence even against third or their privies, persons, of the fact which insofar as due gave rise to its due execution execution and date and to the date of the latter of the document are concerned As to validity of certain transactions Certain transactions must be contained in a public document; otherwise they will not be given any validity.

Q: What are the rules in interpreting documents? A: 1. The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. 2. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. 3. The intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. 4. The circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. 5. The terms of a writing are presumed to have been used in their primary and general

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. 6. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. 7. When the characters in which an instrument is written are difficult to be deciphered, or 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. 8. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other 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. 9. 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. 10. An instrument may be construed according to usage, in order to determine its true character (Secs. 10-19). c. WHEN A PRIVATE WRITING REQUIRES AUTHENTICATION; PROOF OF A PRIVATE WRITING Q: Is the testimony of a handwriting expert indispensable to the examination or the comparison of handwritings in cases of forgery? A: No. Handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them, but resort to these experts is not mandatory or indispensable. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity. The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of

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specimens of the questioned signatures with those of the currently existing ones (Pontaoe v. Pontaoe, G.R. No. 15958, Apr. 22, 2008). d. WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE WRITING IS NOT REQUIRED (ANCIENT DOCUMENTS) Q: What are the requisites for an ancient document to be exempt from proof of due execution and authenticity (rule on ancient document/authentic document rule)? A: 1. The private document be more than 30 years old; 2. That it be produced from a custody in which it would naturally be found if genuine; and 3. That it is unblemished by any alteration or circumstances of suspicion (Sec. 21). Note: Ancient document rule applies only if there are no other witnesses to determine authenticity.

e. HOW TO PROVE GENUINENESS OF A HANDWRITING Q: How is the genuineness of a person’s handwriting proved? A: 1. It may be proved by any witness who actually saw the person writing the instrument; 2. By any person who is familiar or has acquired knowledge of the handwriting of such person, his opinion as to the handwriting being an exception to the opinion rule under Secs. 48 & 50 of Rule 130; 3. By a comparison of the questioned handwriting from the admitted genuine specimens thereof; or 4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule 130). f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF OFFICIAL RECORD Q: How are public records proved? A: Written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, e.g. a written foreign law, may be evidenced by: 1. If it is within the Philippines a. an official publication thereof; or b. by a copy attested by the officer having the legal custody of the record, or by his deputy. 2. If it is kept in a foreign country

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE a. an official publication thereof; or b. by a copy attested by the officer having the legal custody of the record, or by his deputy and accompanied with a certificate that such officer has the custody. The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office (Sec. 24, Rule 132). Q: Is a special power of attorney executed and acknowledged before a notary public in a foreign country authorizing a person to file a suit against certain persons in the Philippines admissible in evidence? A: No, because a notary public in a foreign country is not one of those who can issue the certificate mentioned in Sec. 24, Rule 132 of Rules of Court. Non-compliance with the said rule will render the SPA inadmissible in evidence. Not being duly established in evidence, the SPA cannot be used to file a suit in representation of another. The failure to have the SPA authenticated is not a mere technicality but a question of jurisdiction. (Heirs of Medina v. Natividad, G.R. No. 177505, Nov. 27, 2008) Q: May a public record be removed from its office?

license to carry any firearm. The certifying officer, however, was not presented as a witness. Is the certification of the PNP Firearm and Explosives Office without the certifying officer testifying on it admissible in evidence against Lino? A: Yes. Section 28, Rule 130 of the Rules of Court provides that “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.” The records of the PNP Firearm and Explosives Office are a public record. Hence, notwithstanding that the certifying officer was not presented as a witness for the prosecution, the certification he made is admissible in evidence against Lino. (2003 Bar Question) g. ATTESTATION OF A COPY Q: What must the attestation of a copy state? A: Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance: 1. That the copy is a correct copy of the original, or a specific part thereof, as the case may be; 2. It 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.

A: GR: No. Any public record must not be removed from the office in which it is kept. . XPN: Upon order of a court where the inspection of the record is essential to the just determination of a pending case (Sec. 26, Rule 132). Q: What is the probative value of documents consisting of entries in public records? A: They are prima facie evidence of the facts stated therein if entered by a public officer in the performance of a duty. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter (Sec. 23, Rule 132). Q: Lino was charged with illegal possession of firearm. During trial, the prosecution presented in evidence a certification of the PNP Firearms and Explosives Office attesting that the accused had no

h. PUBLIC RECORD OF A PUBLIC DOCUMENT Q: How may a public record of a private document be proved? A: Any of the following: 1. By the original record; or 2. By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody (Sec. 27, Rule 132). i. PROOF OF LACK OF RECORD Q: How may the absence of a record be proven? A: Proof of lack of record of a document consists of written statement signed by an officer having custody of an official record or by his deputy. The written statement must contain the following matters: 1. There has been a diligent search of the record;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office. Note: The written statement must be accompanied by a certificate that such officer has the custody of official records (Sec. 28, Rule 132).

j. HOW A JUDICIAL RECORD IS IMPEACHED Q: How may a judicial record be impeached? A: It may be impeached by evidence of: 1. Want of jurisdiction in the court or judicial officer; 2. Collusion between the parties; or 3. Fraud in the party offering the record, in respect to the proceedings (Sec. 29). k. PROOF OF NOTARIAL DOCUMENTS Q: What is the evidentiary weight given to a notarial document? A: Notarial documents celebrated with all the legal requisites under a notarial certificate is evidence of a high character, and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear, convincing and more than mere preponderant evidence. A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in its 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, G.R. No.125283, Aug. 9, 2005). Q: How are notarial documents proved? A: The document 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). Note: The identification documents which may be presented as “competent evidence of identity” by signatories to documents or instruments to be notarized include, but are not limited to, passports, driver’s licenses, Professional Regulations Commission identification cards, NBI clearances, police clearances, postal IDs, voter’s IDs, Barangay certifications, GSIS ecards, SSS cards, Philhealth cards, senior citizen’s

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cards, Overseas Workers Welfare Administration (OWWA) IDs, OFW IDs, seaman’s books, alien certificate of registrations/immigrant certificate of registrations, government office IDs, certifications from the National Council for the Welfare of Disabled Persons (NCWDP), and DSWD certifications. Notaries public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on Notarial Practice, Feb. 19, 2008).

l. HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT Q: How should documents with alterations be presented as evidence for it to be admissible? A: A party producing a document as genuine which has been altered and appears to have been altered after its execution must account for the alteration. He may show that the alteration: 1. was made by another, without his concurrence; 2. was made with the consent of the parties affected by it; 3. was otherwise properly or innocently made; or 4. that the alteration did not change the meaning or language of the instrument. Note: Failure to do any of the above will make the document inadmissible in evidence (Sec. 31).

m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE Q: May a document be admitted into evidence if it is written in an unofficial language? A: Documents written in an unofficial language shall not be admitted as evidence unless accompanied with a translation into English or Filipino (Sec. 32). E. TESTIMONIAL EVIDENCE 1. QUALIFICATIONS OF A WITNESS Q: Who are qualified to be witnesses? A: All persons who: 1. can perceive and perceiving; 2. can make known their perception to others (Sec. 20, Rule 130); 3. must take either an oath or an affirmation (Sec. 1, Rule 132; Riano, Evidence: A Restatement for the Bar, p. 245, 2009 ed.); and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 4.

must not possess the disqualifications imposed by law or the rules (Riano, Evidence: A Restatement for the Bar, p. 246, 2009 ed.)

NOTE: The ability to make known the perception of the witness to the court involves two factors: (a) the ability to remember what has been perceived; and (b) the ability to communicate the remembered perception. Consider a witness who has taken the oath and who has personal knowledge of the event which he is going to testify (Riano, Evidence: A Restatement for the Bar, p. 248, 2009 ed).

Q: What are the qualifications of a witness? A: A prospective witness must show that he has the following abilities: 1. To Observe – the testimonial quality of perception; 2. To Remember – the testimonial quality of memory; 3. To Relate – the testimonial quality of narration; and 4. To Recognize a duty to tell the truth – the testimonial quality of sincerity. Q: What cannot be considered as grounds for disqualification? A: GR: 1. Religious or political belief; 2. Interest in the outcome of the case; or 3. Conviction of a crime (Sec. 20). XPN: Unless otherwise provided by law like the following: 1. Those convicted of falsification of document, perjury or false testimony is prohibited from being witnesses to a will (Art. 821, NCC). 2. Those convicted of an offense involving moral turpitude cannot be discharged to become a State witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981). 3. Those who fall under the disqualification provided under Secs. 21-24, Rule 130. 2. COMPETENCY VS CREDIBILITY OF A WITNESS

capacity to communicate his perception to others. (Riano, 2009, p.250)

Q: What is the rule on competency of witness? A: GR: A person who takes the witness stand is presumed to possess the qualifications of a witness. (Presumption of competency) XPN: There is prima facie evidence of incompetency in the following: 1. The fact that a person has been recently found of unsound mind by a court of competent jurisdiction; or 2. That one is an inmate of an asylum for the insane. Q: What is the void dire examination? A: A preliminary examination conducted by the trial judge where the witness is duly sworn to answer as to his competency (Competency Examination). 3. DISQUALIFICATIONS OF WITNESSES Q: Who are disqualified to be witnesses under the rules? A: Those who are: 1. Disqualified by reason of mental incapacity or immaturity; 2. Disqualified by reason of marriage; 3. Disqualified by reason of death or insanity of adverse party; and 4. Disqualified on the ground of privileged communication: a. Marital privilege; b. Attorney-client privilege; c. Doctor-patient privilege; d. Minister-penitent privilege; or e. Public officer as regards communications made in official confidence. Note: The qualifications and disqualifications of witnesses are determined as of the time they are produced for examination in court or at the taking of the depositions.

Q: Distinguish competency of a witness from credibility of a witness. A: Competency of a Witness Has reference to the basic qualifications of a witness as his capacity to perceive and his

Credibility of a Witness Refers to the believability of the witness and has nothing to do with the law or the rules. (Ibid).

a. DISQUALIFIED BY REASON OF MENTAL INCAPACITY OR IMMATURITY Q: What are the requisites for a witness to be disqualified under this rule? A: 1.

The proposed witness must be incapable of making known his perception to others; and

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

The incapacity must exist as of the time of his production for examination (Riano, Evidence: A Restatement for the Bar, p. 254, 2009 ed.).

presentation of the testimony of Cyrus on the ground that, being a deaf-mute, he was not a competent witness. Is the contention of the accused correct?

Q: Who are disqualified by reason of mental incapacity or immaturity?

A: No. A deaf-mute is not incompetent as a witness. Deaf-mutes are competent witnesses where they can: 1. understand and appreciate the sanctity of an oath; 2. comprehend facts they are going to testify on; and 3. communicate their ideas through a qualified interpreter (People v. Tuangco, G.R. No. 130331, Nov. 22, 2001).

A: 1.

2.

Mental incapacity – those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; he can still be a witness during his lucid interval. The disqualification is only absolute if the insane person is publicly known to be insane and does not have lucid intervals. Mental immaturity – children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (Sec. 21)

Q: When must the incompetence of the witness by reason of mental incapacity or immaturity exist? A: Mental Incapacity The incompetence of the witness must exist not at the time of his perception of the facts but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived. (Riano, Evidence: A Restatement for the Bar, p. 255, 2009 ed.)

Mental Immaturity

The incompetence of the witness must occur at the time the witness perceives the event including his incapability to relate his perceptions truthfully. (Ibid.)

Q: Does mental unsoundness of the witness at the time the fact to be testified occurred affect his competency? A: No, it only affects his credibility. Nevertheless, as long as the witness can convey ideas by words or signs and can give sufficiently intelligent answers to questions propounded, she is a competent witness even if she is feeble-minded (People v. De Jesus, G.R. No. L-39087, Apr. 27, 1984) or is mental retardate (People v. Gerones, G.R. No. 91116, Jan. 24, 1991) or is a schizophrenic (People v. Baid, G.R. No. 129667, July 31, 2000). Q: Cyrus, a deaf-mute, was presented as a witness in a criminal case. The accused objected to the

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b. DISQUALIFICATION BY REASON OF MARRIAGE/SPOUSAL IMMUNITY Q: What is purpose of this disqualification? A: The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than that the exigencies of the lawsuits should authorize domestic peace to be disregarded for the sake of ferreting out facts within the knowledge of strangers. Q: What are the requisites in order for the spousal immunity to apply? A: 1. 2. 3.

4.

That the spouse for or against whom the testimony is offered is a party to the case; That the spouses are validly married; The testimony is one that is offered during the existence of the marriage (Riano, Evidence: A Restatement for the Bar, p. 266, 2009 ed.); and The case is not one of the exceptions provided in the rule. (Herrera, Vol. V, p. 302, 1999 ed.)

Q: What kind of testimony is covered by the prohibition? A: The prohibition extends not only to testimony adverse to the spouse but also to a testimony in favor of the spouse. (Sec. 22, Rule 130; Riano, Evidence: A Restatement for the Bar, p. 265, 2009 ed.) Note: It does not apply in the case of estranged spouses, where the marital and domestic relations are so strained that there is no more harmony to be

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE preserved nor peace and tranquility which may be disturbed (Alvarez vs Ramirez, October 14, 2005)

Q: What are the exceptions to the spousal immunity? A: 1. In a civil case by one against the other; or 2. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Sec. 22), or 3. Where the testimony was made outside the marriage. Q: Can this be waived? A: This can be waived just like any other objection to the competency of other witnesses. It can be waived through failure to interpose timely objection of by calling the other spouse as a witness. Q: If an accused marries the prosecution witness for the sole purpose of sealing the lips of the witness, will the prohibition apply? A: Yes. As long as a valid marriage exists at the time of the trial, the witness-spouse cannot be compelled to testify even where the crime charged is against the witness’ person, and even though the marriage was entered into for the express purpose of suppressing the testimony. Q: Distinguish spousal immunity from marital privilege. A: Disqualification By Reason Of Marriage (Sec. 22) Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes an absolute prohibition for or against the spouse of the witness The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse.

Disqualification By Reason Of Marital Privilege (Sec. 24) Can be claimed whether or not the other spouse is a party to the action Can be claimed even after the marriage is dissolved Applies only to confidential communications between the spouses The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into

Q: Who can claim spousal immunity? A: The spouse who can object is the spouse-party and not the spouse-witness. Q: Gizelle was estranged from her husband Mico for more than a year. Gizelle was temporarily living with her sister in Pasig City. For unknown reasons, the house of Ivy’s sister was burned, killing the latter. Gizelle survived. Gizelle saw her Mico in the vicinity during the incident. Later, Mico was charged with arson. During the trial, the prosecutor called Gizelle to the witness stand and offered her testimony to prove that her husband committed arson. Can Gizelle testify over the objection of her husband on the ground of marital privilege? A: Yes. The marital disqualification rule is aimed at protecting the harmony and confidences of marital relations. Hence, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquillity which may be disturbed, the marital disqualification no longer applies. The act of Mico in setting fire to the house of his sister-in-law, knowing that his wife was there, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. (Alvarez v. Ramirez, G.R. No. 143439, Oct. 14, 2005). (2006 Bar Question) c. DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF THE ADVERSE PARTY (DEAD MAN STATUTE/SURVIVING PARTIES RULE) Q: What are the elements for the application of the rule? A:

1.

2.

3.

4.

The defendant in the case is the executor or the administrator or a representative of the deceased or the person of unsound mind; The case is against the executor or the administrator or a representative of the deceased or the person of unsound mind; The subject matter of the action is a claim or demand against the estate of a deceased person or a person of unsound mind; and The testimony is as to any matter of fact occurring before the death of such deceased person or before such person

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 became of unsound mind. (Sec. 23, Rule 130)

8.

Negative testimony, that is, testimony that a fact did not occur during the lifetime of the deceased; 9. Testimony on the present possession by the witness of a written document signed by the deceased because such fact exists even after the death of decedent; 10. When the defendant/s, though heirs of the deceased, are sued in their personal and individual capacities; and 11. In actions against a partnership.

Q: What is covered by the disqualification by reason of death or insanity of the adverse party? A: It constitutes a partial disqualification of a witness wherein he is prohibited from testifying as to any matter of fact occurring before the death or insanity of a party to the transaction. Note: The witness cannot testify on matters which occurred in the presence and within the hearing of the decedent to which he might testify on his personal knowledge if he were alive. Facts favorable to the deceased or insane person or their representatives are not prohibited.

Q: What is the reason underlying the adoption of the dead man statute? A: To guard against the temptation to give false testimony in regard of the transaction in question on the part of the surviving party and to discourage perjury. Q: What are the cases not covered by the dead man statute? A: 1.

2. 3.

4.

5. 6.

7.

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Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to officers and stockholders of a plaintiff corporation; If the person or persons mentioned under the rule file a counterclaim ; Where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent; Land registration cases instituted by the deceased’s representative, where the oppositor is considered as defendant or in cadastral cases where there are no oppositors; When there is waiver; If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind; When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule, provided such fraud is first established by other evidence;

Q: Can this be waived? A: The disqualification under this rule is waived if the defendant does not timely object to the admission of such evidence or testifies on the prohibited matters or cross-examines thereon. Q: Distinguish dead man’s statute from marital disqualification rule. A: Dead Man’s Statute

Marital Disqualification Rule

Only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified

A complete and absolute disqualification

Applies only to a civil case or special proceeding over the estate of a deceased or insane person

GR: Applies to a civil or criminal case. XPN: In a civil case by one spouse against the other or in a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants

d. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION Q: Who may assert the privilege? A: The holder of the privilege, authorized persons and persons to whom privileged communication were made can assert the privilege. Note: The disqualification applies to both civil and criminal cases except as to the doctor-patient privilege, which is applicable only in civil cases. Unless waived, the disqualification under Sec. 24 remains even after the various relationships therein have ceased to exist. The privilege cannot be invoked where confidential information are made in contemplation of death or in furtherance or perpetuation of fraud. Unless waived,

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE the disqualification under Sec. 24 remains even after the various relationships therein have ceased to exist.

A: 1. 2.

(1) HUSBAND AND WIFE Q: What are the requisites for the application of this privilege?

3.

A: 1. 2.

3.

There was a valid marriage; The privilege is invoked with respect to a confidential communication between the spouses during the said marriage; and The spouse against whom such evidence is being offered has not given his consent to such testimony.

Attorney-client relation; The privilege is invoked with respect to a confidential communication between them in the course of professional employment; and The client has not given his consent to the attorney’s testimony; or if the attorney’s secretary, stenographer or clerk is sought to be examined, that both the client and the attorney have not given their consent. (Regalado, Vol. II, p. 749, 2008 ed.)

Q: What is the purpose of this privilege?

Q: When is the privilege inapplicable?

A: To encourage full disclosure by client to his attorney of all pertinent matters as to further the administration of justice.

A:

Q: When is the privilege inapplicable? 1. 2.

In a civil case by one against the other; or In a criminal case for a crime committed by one against the other or the latter’s direct ascendants or descendants.

Q: Are third persons who overhear the communication between the spouses bound by the privilege? A: GR: Third persons who, without the knowledge of the spouses, overhear the communication are not disqualified to testify. XPN: When there is collusion and voluntary disclosure to a third party, that third party becomes an agent and cannot testify. Q: Distinguish marital privilege disqualification by reason of marriage.

from

A: Disqualification by reason of marriage Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes a total prohibition against the spouse of the witness

Marital privilege Can be claimed whether or not the spouse is a party to the action Can be claimed even after the marriage has been dissolved Applies only to confidential communications between the spouses

(2) ATTORNEY AND CLIENT Q: What are the requisites for the application of the privilege?

A: It does not apply to communications which are: 1. intended to be made public; 2. intended to be communicated to others; 3. intended for an unlawful purpose; 4. received from third persons not acting in behalf or as agents of the client; or 5. made in the presence of third parties who are strangers to the attorney-client relationship. (Regalado, Vol. II, p. 750, 2008 ed.) Q: What is the test in applying the attorney-client privilege? A: The test is whether the communication made is with the view of obtaining from the lawyer his professional assistance or advice regardless of the existence or absence of a pending litigation. Q: May a lawyer refuse to divulge the identity of his clients? A: GR: Lawyers may not invoke the privilege and refuse to divulge the name or identity of their client. XPNs: 3. Where a strong possibility exists that revealing client’s name would implicate the client in the very activity for which he sought the lawyer’s advice; 4. Where disclosure would open the client to civil liability; or 5. Where the prosecutors have no case against the client unless by revealing the client’s name, the said name would furnish the only link that would form the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 chain of testimony necessary to convict an individual for a crime. Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping to tow another vessel, drowning 5 of the crew in the resulting shipwreck. At the maritime board inquiry, the 4 survivors testified. SPS engaged Atty. Ely to defend against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the 5 victims filed an action for damages against SPS. The counsel of the heirs of the 5 victims sent written interrogatories to Ely, asking whether statements of the witnesses may be obtained. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. A: Yes, the contention of counsel for SPS is tenable considering that he was acting in his professional capacity in bringing about the statement he obtained from the witnesses and the memoranda he made. The notes, memoranda, and writings made by the counsel in pursuance of his professional duty, form part of his private and confidential files in the cases handled by him; hence privileged (Air Philippines Corp v. Penswell, Inc., G.R. No. 172835, Dec. 13, 2007).

A: The privilege is intended to facilitate and make safe, full and confidential disclosure by patient to doctor of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. Q: When is the privilege inapplicable? A: It does not apply to communications which are: 1. Not given in confidence; 2. Irrelevant to the professional employment; 3. Made for an unlawful purpose; 4. Intended to be made public; or 5. Waived either by contract or law. (Regalado, Vol. II, p. 751, 2008 ed.) Q: What are the pieces of information which cannot be disclosed? A: 1. Any advice or treat given to the client; 2. Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity; and 3. That the information sought to be disclosed would tend to blacken the reputation of the patient. (Sec. 24c, Rule 130)

(3) PHYSICIAN AND PATIENT Q: Can such privilege be waived? Q: What are the requisites for the application of the privilege? A: 1. 2.

3.

4. 5.

The action involves a civil case; The relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; The advice or treatment given by him or any information was acquired by the physician while professionally attending to the patient; The information was necessary for the performance of his professional duty; and The disclosure of the information would tend to blacken the reputation of the patient.

Q: What is the purpose of this privilege?

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A: Yes. The waiver may be made expressly or impliedly. The waiver may be by a contract as in medical or life insurance. When there is disclosure by the patient of the information, there is necessarily, a waiver. When the patient answers questions on cross on matters which are supposedly privileged, the waiver also exists. There could also be waiver by operation of law (sec4, Rule 28 of the Rules of Court) (Riano, p.292). Q: Is it necessary that the professional relationship exists between the doctor and patient when the communication was made? A: Yes. It is essential that while the doctor was attending to the patient for curative, preventive or palliative treatment. It is not however necessary that the relationship was created through the voluntary act of the patient. The treatment may have been given at the behest of another. (Ibid.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE Q: Aimee sought to offer as evidence the testimony of Dr. Naval to prove that Bob is not the illegitimate son of Yuring as the latter was sterile. Bob objected to the admissibility of the said testimony arguing that the same is covered by the physician-patient privilege because the testimony would blacken the reputation of Yuring. It was alleged that Yuring became sterile because he contracted gonorrhea. Aimee argues that Yuring is long dead and, as such, the privilege may not be invoked. 1. Is the testimony of Dr. Naval covered by the physician-patient privilege? 2. Does the fact that Yuring is long dead bar the application of the physician-patient privilege?

privilege is claimed is not one duly authorized to practice medicine, surgery obstetrics. Xavier is simply Ysa's husband who wishes to testify on a document executed by medical practitioners. This does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report (Krohn v. CA, G.R. No. 108854, June 14, 1994). (4) PRIEST AND PENITENT Q: What are the requisites for its application? A:

A:

1. 1.

Yes. Yuring's sterility arose when he contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a sexually-transmitted disease, would be sufficient to blacken the reputation of any patient (Gonzales v. CA, G.R. No. 117740, Oct. 30, 1998).

2.

The confession must have been made to the priest in his professional character according to the discipline of the church to which the priest or minister belongs [Sec. 24(d)]; and Communications made must be confidential and must be penitential in character e.g., under the seal of the confessional (Regalado, Vol. II, p. 752, 2008 ed.)

Q: What is the purpose of this privilege? 2.

No. The privilege of secrecy is not abolished or terminated because of death. The purpose of the law would be thwarted and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy, from the communications and disclosures which a patient should make to his physician. After one has gone to his grave, the living are not permitted to impair his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute (Gonzales v. CA, G.R. No. 117740, Oct. 30, 1998).

Q: Xavier filed a complaint for declaration of nullity of his marriage with Ysa on the ground of psychological incapacity. Xavier sought to testify on a confidential psychiatric evaluation report on his wife. Ysa objected to Xavier’s testimony on the ground that it violates the physician-patient privilege. Is the objection of Ysa correct? A: No. One of the requisites before the physicianpatient privilege may be invoked is that the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics. Here, the person against whom the

A: To allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential disclosures to religious practitioners. Q: When is the privilege inapplicable? A: When the communication is not penitential in character as when what is divulged is the plan to commit a crime. Q: What is the rationale behind the privilege granted to communications between minister/priest and the penitent? A: It is to allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential disclosures to religious practitioners (Peralta, Jr., p. 220, 2005 ed.). (5) PUBLIC OFFICERS Q: What are the requisites for its application? A: 1. 2.

The communication must have been made to a public officer; The communication was given to the public officer in official confidence; and

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 3.

The public interest would suffer by the disclosure of the communication. (Regalado, Vol. II, p. 752, 2008 ed.)

e. PARENTAL AND FILIAL PRIVILEGE RULE Q: May a descendant be compelled to testify against his parents in a criminal case?

Q: When is the privilege inapplicable? A: If what is asked: 1. is useful evidence to vindicate the innocence of an accused; 2. lessen the risk of false testimony; 3. is essential to the proper disposition of the litigation; or 4. 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. (Francisco, p. 171, 1992 ed.) Q: Is the privilege applicable to public officer in general? A: No. The privilege only applies to communications to such officers who have a responsibility or duty to investigate or to prevent public wrongs, and not to officials in general (Francisco, p. 139, 1992 ed.). Note: The court, not the witness, will determine the necessity of regarding the communication as privileged (Francisco, p. 143, 1992 ed.).

Q: What is the concept of executive privilege? A: Certain types of information like military, diplomatic and other national security matters may be withheld from the public. Q: Secretary of Fisheries Nenito Abesamis received an invitation for questioning in a hearing from the Senate of the Philippines regarding Fish Feeds Scam. During the hearing, Abesamis didn’t answer the questions propounded to him by Senator Renato Pamintuan claiming that his position entitles him to invoke the executive privilege. Is his contention correct? A: No. As held in the case of Senate of the Philippines vs. Ermita, (G.R. No. 169777, April 25, 2006). The Court upheld the doctrine of executive privilege; it found the executive order partly constitutionally defective, specifically Secs. 2(b) and 3 which required government officials below the heads of executive departments to secure consent from the President before appearing in congressional hearings and investigations. The Court noted that E.O. 464 covers persons which are a misuse of the doctrine because the privilege is to be properly invoked in relation to specific categories of information and not categories of persons. (Riano, 2009 ed., p. 298)

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A: No, because no person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Sec. 25). A descendant may not be compelled to testify against his parents notwithstanding Article 215 of the Family Code which allows the compulsion of a descendant to testify against his parents when such testimony is indispensable in a crime against the descendant or by one against the other. Any conflict between the two provisions should be resolved in favor of the Rules of Court provision because although found in a substantive law, the aforesaid Family Code provision is essentially procedural in nature. Alternative Answer: Yes. Article 215 of the Family Code provides that “No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one against the other”. The parental and filial privilege under the Rules of Court notwithstanding, it is submitted that the Family Code is superior to the former since a procedural rule of evidence cannot impair a substantive law. Hence, a descendant may be compelled to testify against his parents if such testimony is indispensable in a crime against the descendant or by one against the other. Q: Which should be applied between Rule 130, Sec. 25 of the Rules of Court and Art. 215 of the Family Code in case of conflict? A: It was suggested that the Rules of Court should apply because it took effect in 1989 as compared to the Family Code which took effect in 1988. It may be argued that the former is procedural and the latter is substantive; however, it was further suggested that although the Family Code provision is substantive, it is procedural in character. So, of these two provisions, the Rules of Court, promulgated by the Supreme Court, should prevail. OTHER PRIVILEGED MATTERS Q: What other matters are considered privileged? A: 1.

The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE

2.

3. 4.

5.

6.

7.

received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child [Sec. 5 (e), Rule on Examination of a Child Witness]; Editors, publisher, 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 any information given to him in confidence, unless a court or a House or a committee of Congress finds that such revelation is demanded for State security (R.A. 1477); Voters may not be compelled to disclose for whom they voted; Trade secrets cannot be disclosed although this is not absolute as the court may compel disclosure where it is indispensable for doing justice (Francisco, p. 335, 1992 ed.); Bank deposits are absolutely confidential in nature except upon written permission of the depositor, or in cases of impeachment, or upon lawful order of a competent court (R.A. 1405; Francisco, p. 335, 1992 ed.); Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them (Art. 233, Labor Code); and Informers, for the protection of their identity, cannot be compelled to testify by the prosecutor when their testimony would merely be cumulative and corroborative (Herrera, Vol. V, p. 353, 1999 ed.). 4. EXAMINATION OF A WITNESSES

a. RIGHTS AND OBLIGATIONS OF A WITNESS Q: What are the rights of a witness? A: 1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; 2. Not to be detained longer than the interests of justice require; 3. Not to be examined except only as to matters pertinent to the issue; 4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law (right against self-incrimination) Note: This refers to immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses

admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the law providing for the forfeiture of unlawfully acquired property; and under P.D. 749, in prosecutions for bribery and graft.

5.

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).

Q: What are the classifications of immunity statutes? A: Use Immunity Prohibits the use of the witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness

Transactional Immunity Grants immunity to the witness from prosecution for an offense to which his compelled testimony relates

Q: May a witness refuse to answer questions material to the inquiry? A: GR: A witness cannot refuse to answer questions. The witness has the obligation to answer questions, although his answer may tend to establish a claim against him (Sec. 3). XPN: A witness may validly refuse to answer under the: 1. Right against self-incrimination – if his answer will tend to subject him to punishment for an offense; or 2. Right against self-degradation – if his answer will have a direct tendency to degrade his character. XPN to the XPN: A witness may not invoke the right against self-incrimination nor the right against self-degradation if: 1. Such question is directed to the very fact at issue or to a fact from which the fact at issue would be presumed; or 2. If it refers to his previous final conviction for an offense. (Regalado, Vol. II, pp. 841842, 2008 ed.) Note: Right against self-incrimination pertains only to natural persons and with respect to testimonial compulsion only. This right may be invoked in all kinds of proceedings where testimony is to be taken, including investigation by legislative bodies.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 The constitutional assurance of the right against selfincrimination is a prohibition against the use of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against legal process to extract from the accused’s own lips, against his will, admission of his guilt (Ong v. Sandiganbayan & Office of the Ombudsman, G.R. No. 126858, Sept. 16, 2005).

Q: Distinguish the right against self-incrimination of the accused from that of an ordinary witness. A: Accused Cannot be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused, he cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be required either for the prosecution, for coaccused or even for himself.

Ordinary Witness May be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminating question at the time it is put to him.

Q: May a witness refuse to take the witness stand? A: GR: A witness may not refuse to take the witness stand. XPNs: 1. An accused in a criminal case; or 2. In civil and administrative cases that partake the nature of or analogous to a criminal proceeding. As long as the suit is criminal in nature, the party thereto can decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls (Rosete, et. al. v. Lim, et. al., G.R. No. 136051, June 8, 2006). Q: Mr. Talisman, a government official, was invited by the Senate to be one of the resource persons in the public hearing in one of its committees. When Mr. Talisman declined the invitation, the Senate directed its sergeant-at-arms to place him under arrest for contempt. He was arrested and brought to the Senate where he was detained. He filed a petition for certiorari and prohibition alleging that his right against self-incrimination was violated. Is his contention correct? A: No. The right against self-incrimination may only be invoked when the incriminating question is being asked, since he has no way of knowing in advance the nature or effect of the questions to be asked. That this right may possibly be violated or abused is no ground for denying respondent senate

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committees their power of inquiry. (In Re: Sabio, G.R. No. 174340, Oct. 17, 2006). Q: Is the right against self-incrimination available to a witness who has been admitted to the Witness Protection Program? A: Any witness admitted into the program of the Witness Protection, Security and Benefit Act cannot refuse to testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the offense or offenses for which he has been admitted into the Program on the ground of the constitutional right against self-incrimination but he shall enjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents, records and writings produced (Sec. 14, R.A. 6981). Q: Who may be admitted to the Witness Protection, Security and Benefit Program? A: Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority may be admitted provided that: 1. the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or its equivalent under special laws; 2. his testimony can be substantially corroborated in its material points; 3. he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and 4. he is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under the Act (Sec. 3, R.A. 6981). Q: Who is a State witness? A: Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and shall be admitted into

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE the Program if the following circumstances are present: 1.

2. 3.

4. 5. 6.

A:

the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; there is absolute necessity for his testimony; there is no other direct evidence available for the proper prosecution of the offense committed; his testimony can be substantially corroborated on its material points; he does not appear to be most guilty; and he has not at any time been convicted of any crime involving moral turpitude.

Note: An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program under R.A. 6981 if he complies with the other requirements of the said law. R.A. 6981 does not prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Rules of Court (Sec. 10, R.A. 6981).

Q: Can a State witness be liable for contempt or criminal prosecution? A: Yes, if he fails or refuses to testify or to continue to testify without just cause when lawfully obliged to do so, he shall be prosecuted for contempt. If he testifies falsely or evasively, he shall be liable to prosecution for perjury. If a State witness fails or refuses to testify, or testifies falsely or evasively, or violates any condition accompanying such immunity without just cause, as determined in a hearing by the proper court, his immunity shall be removed and he shall be subject to contempt or criminal prosecution. Moreover, the enjoyment of all rights and benefits under R.A. 6981 shall be deemed terminated. The witness may, however, purge himself of the contumacious acts by testifying at any appropriate stage of the proceedings (Sec. 13, R.A. 6981).

Q: What are the purposes of each stage of the examination? A: 1.

Direct examination – To establish the case of the proponent of the witness. The purpose is to elicit facts about the client’s cause of action or defense.

2.

Cross examination – As a rule, the scope of this is not confined to the matters stated by the witness in the direct examination. (Riano, p. 318). The purpose of which is: a. To impeach the credibility of the testimony; b. To impeach the credibility of the witness; c. To elicit admissions; and d. To clarify certain matters.

3.

Redirect examination – The counsel may elicit testimony to correct or repel any

b. ORDER IN THE EXAMINATION OF A WITNESS (1) DIRECT EXAMINATION (2) CROSS EXAMINATION (3) RE-DIRECT EXAMINATION (4) RE-CROSS EXAMINATION Q: What is the order in the examination of an individual witness?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 wrong impression or inferences that may have been created. It may also be an opportunity to rehabilitate a witness whose credibility has been damaged (Riano, p.319). Its purposes are: a. To afford opportunity to the witness to explain or amplify his testimony during cross-examination; and b. To explain any apparent contradiction or inconsistency in his statements.

XPN: Where the prosecution witness was extensively cross-examined on the material points and thereafter failed to appear and cannot be produced despite a warrant of his arrest. (People vs Gorospe, gr. 51513, May 15, 1984) Q: What is the effect of death or absence of a witness after the direct examination by the proponent? A: 1.

4.

Re-cross examination – It is limited to the new matters brought out on the redirect examination of the witness and also on such other matters as may be allowed by the court in its discretion. The purposes are: a. To overcome the proponent’s attempt to rehabilitate the witness; and b. To rebut damaging evidence brought out during cross-examination.

2.

Q: What is the scope of a cross-examination? A: 1. English rule – Where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. 2.

American rule – Cross-examination is restricted to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness.

Q: What rule is observed in our jurisdiction?

3.

If the witness was not cross-examined because of causes attributable to the cross-examining party and the witness had always made himself available for cross-examination, the direct testimony of the witness shall remain on record and cannot be stricken off because the crossexaminer is deemed to have waived his right to cross-examine (Dela Paz v. IAC, G.R. No. 75860, Sept. 17, 1987). If the witness was partially crossexamined but died before the completion of his cross-examination, his testimony on direct may be stricken out but only with respect to the testimony not covered by the cross-examination (People v. Señeris, G.R. No. L-48883, Aug. 6, 1980). The absence of a witness is not sufficient to warrant the striking out of his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, and the matter on which crossexamination is sought is not in controversy (Ibid.).

Q: Is the party who offered the testimony of a witness bound by such testimony? A: GR: Yes, he is bound by the testimony.

A: GR: The English rule is observed in our jurisdiction. XPN: The American rule is observed with respect to cross-examination of an accused or a hostile witness.

XPN: When the witness is the: 1. adverse party; 2. hostile witness; 3. unwilling witness; or 4. a witness required by law to be presented (forced witness)

Q: What is the Doctrine of Incomplete Testimony? Q: Who is a hostile witness? A: GR: 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 and should be stricken from the record.

340

A: A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify or his having misled the party into calling him to the witness stand (Sec. 12).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE (5) RECALLING THE WITNESS Q: What is the rule on recalling of a witness?

he has previously stated. It is not allowed (Sec. 10) unless waived or when asking hypothetical questions to an expert witness. It is not allowed in any type of examination.

A: GR: A witness cannot be recalled without leave of court as the recalling of a witness is a matter of judicial discretion. (Sec. 9, Rule 132) XPN: 1. The examination has not been concluded; 2. If the recall of the witness was expressly reserved by a party with the approval of the court. In these two cases the recall of a witness is a matter of right. (Regalado, Vol. II, p. 848, 2008 ed.) Note: Something more than the bare assertion of the need to propound additional questions is essential before the court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall.

c. LEADING AND MISLEADING QUESTIONS Q: What is leading question? A: It is one which suggests to the witness the answer which the examining party desires. It is not allowed except: 1. On cross-examination; 2. On preliminary matters; 3. When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind or a deaf-mute; 4. To unwilling witness or hostile witness; or 5. Witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. (Sec. 10). Q: Why are leading questions allowed during cross-examination? A: The witness is not the cross-examining party’s witness. He is expected to be adverse or hostile to the cross-examiner. He is not expected to cooperate. Note: A question that merely suggests a subject without suggesting an answer or a specific thing is not a leading question. E.g. “State whether anything transpired between you and the defendants on the 17th of May 2008.”

Q: What is misleading question? A: It is one which assumes as true a fact not yet testified to by the witness, or contrary to that which

d. METHODS OF IMPEACHMENT OF ADVERSE PARTY Q: What is impeachment of a witness? A: It is a technique employed usually as part of cross-examination to discredit a witness’ testimony by attacking his credibility. (Riano, Evidence: A Restatement for the Bar, p. 323, 2009 ed.) Q: What is meant by impeachment of the adverse party as a witness? A: That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. He is not bound only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted (Gaw v. Chua, G.R. No. 160855, April 16, 2008) Q: What are the methods to impeach the adverse party’s witness? A: BY CONTRADICT ORY EVIDENCE Refers to the prior testimony of the same witness or other evidence presented by him in the same case, but not the testimony of other witness

BY EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY, OR INTEGRITY OF THE WITNESS IS BAD Since the weight of the witness’ testimony depends on his credibility, he may be impeached by impairing his credibility by showing his not pleasing reputation but only as regards his reputation for truth, honesty or integrity

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

BY PRIOR INCONSISTEN T STATEMENTS “LAYING THE PREDICATE" Refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying

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UST GOLDEN NOTES 2011 Q: May a witness be impeached by evidence of particular wrongful acts?

not merely to impeach him, the rule on laying the predicate does not apply.

A:

Q: What are the elements of laying the predicate? GR: A witness may not be impeached by evidence of particular wrongful acts. XPN: If it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense (Sec. 11).

A: 1.

Q: What are the other modes of impeachment? 2. A: 1. 2. 3. 4. 5.

By showing improbability or unreasonableness of testimony; By showing bias, prejudice, and hostility; By prior inconsistent acts or conduct; By showing social connections, occupation and manner of living; or By showing interest. (Francisco, pp. 480481, 1992 ed.)

Q: May a party impeach his own witness? A: GR: A party may not impeach his own witness. XPN: The witness is an: 1. unwilling or adverse witness so declared by the court; 2. adverse party; or 3. officer of the adverse party who is a juridical person (Sec. 12). Note: In these instances, such witnesses may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character.

e. HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS (LAYING THE PREDICATE) Q: What is the procedure for impeaching a witness by evidence of prior inconsistent statements?

Q: When is the rule on laying the predicate inapplicable? A: It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party. (Regalado, Vol. II, p. 852, 2008 ed.) Q: What is the purpose of laying the predicate? A: The purpose of which is to allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Noncompliance with the foundational elements for this mode of impeachment will be a ground for an objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible. (ibid) Q: Distinguish laying the predicate from laying the foundation or basis. A: LAYING THE PREDICATE

A: 1.

2.

3.

The witness must be confronted with such statements with the circumstances of the times, places and the persons present in which they were made; The witness must be asked whether he made such statements, and if so, allowed to explain them; and If the statement be in writing it must be shown to the witness before any question is put to him concerning them (Sec. 13).

Note: This procedure is also called the rule on laying the predicate. Where the previous statements of a witness are offered as evidence of an admission, and

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The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must beshown to him; He must be asked whether he made such statements and also to explain them if he admits making those statements (Riano, p. 327).

Refers only to impeachment of a witness through prior inconsistent statements

LAYING THE FOUNDATION OR BASIS Refers to a situation where evidence which is otherwise incompetent will be introduced into evidence because it falls under the rules of exclusion. E.g. under the best evidence rule, a party must first prove that a writing was duly executed and that the original has been lost or destroyed. Without first laying the foundation, secondary evidence will not be admitted by the court.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE f. EVIDENCE OF THE GOOD CHARACTER OF A WITNESS Q: Is evidence of good character of a witness admissible?

Q: What are the exceptions to the res inter alios acta rule (first branch)? A: 1.

A:

2. GR: No. XPN: When such impeached. (Sec. 14)

character

has

been

Q: When can evidence of bad moral character of the accused be presented? A: In a criminal case, the prosecution cannot prove the bad moral character of the accused in its evidence-in-chief. It can only do so in rebuttal (Sec. 51 [a][2], Rule 130, Rules of Court). Q: When can evidence of good moral character of the accused be presented? A: The accused may prove his good moral character when pertinent to the moral trait involved in the offense charged (Sec.51 [a][1], Rule 130, Rules of Court). Q: When can evidence of character of the offended party may be proved? A: The good or bad moral character of the offended party may be proved by the accused if it tends to establish in any reasonable degree the probability or improbability of the offense charged (Sec. 51 [a][3], Rule 130, Rules of Court). Also, not every good or bad moral character of the offended party may be proved under this provision but only those which would establish the probability or improbability of the offense charged. 5.ADMISSIONS AND CONFESSIONS

3.

Admission by a co-partner or agent (Sec. 29, Rule 130); Admission by a co-conspirator (Sec. 30, Rule 130); and Admission by privies (Sec. 31, Rule 130)

Q: What does the rule prohibit? (2nd Branch of the Res Inter Alios Acta Rule) A: It prohibits the admission of the so-called “propensity evidence” which is 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. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. Hence, the evidentiary rule guards the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants. (Cruz v. CA, G.R. No. 126713, July 27, 1998). b. ADMISSION BY A PARTY Q: What is admission? A: It is an act, declaration or omission of a party as to a relevant fact which may be given in evidence against him (Sec. 26, Rule 130). It is 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. (Regalado, Vol. II, p. 754, 2008 ed.)

a. RES INTER ALIOS ACTA RULE Q: What is the principle of res inter alios acta alteri nocere non debet? A: This principle literally means “things done between strangers ought not to injure those who are not parties to it”. It has two branches: 1. The rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28). 2. 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).

Note: Sections 26 and 32 of Rule 130 refer to extrajudicial admissions.

Q: What are the requisites for an admission to be admissible? A: 1. 2. 3. 4.

Must involve matters of fact and not of law; Must be categorical and definite; Must be knowingly and voluntarily made; and Must be adverse to the admitter’s interests (Ibid.).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What are the classifications of admissions?

admissions by him. (Estrada v. Desierto, G.R. Nos. 146710-15, Apr. 3, 2001)

A: 1. 2. 3. 4.

5.

Express – it is a positive statement or act. Implied – it is one which may be inferred from the declarations or acts of a person. Judicial – when made in the course of a judicial proceeding. Extrajudicial – when made out of court or even in a proceeding other than the one under consideration. (Riano, Evidence: A Restatement for the Bar, p. 117, 2009 ed.) Adoptive – It is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. A third person’s statement becomes the admission of the party embracing or espousing it. Adoptive admission may occur when a party: a. Expressly agrees to or concurs in an oral statement made by another; b. Hears a statement and later on essentially repeats it; c. Utters an acceptance or builds upon the assertion of another; d. Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; or e. Reads and signs a written statement made by another. (Republic v. Kendrick Development Corp., G.R. No. 149576, Aug. 8, 2006)

Q: What is meant by the principle of adoptive admission? A: It states that a party may, by his words or conduct, voluntarily adopt or ratify another’s statement. Where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him. (Riano, Evidence: A Restatement for the Bar, p. 117, 2009 ed.) Note: One good example of adoptive admission is the alleged admissions made by President Estrada when his options had dwindled when, according to the Angara Diary, the Armed Forces withdrew its support from him as President and Commander-in-Chief. Thus, Angara had to allegedly ask Senate President Pimentel to advise Estrada to consider the option of “dignified exit or resignation.” Estrada did not object to the suggested option but simply said he could never leave the country. According to the court, his silence on this and other related suggestions can be taken as adoptive

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Q: Distinguish admission from confession. A: ADMISSION A statement of fact which does not involve an acknowledgment of guilt or liability May be made by third persons and in certain cases, are admissible against a party May be express or implied

CONFESSION A statement of fact which involves an acknowledgment of guilt or liability Can be made only by the party himself and, in some instances, are admissible against his coaccused Always express

Q: What is self-serving declaration? A: It is one which has been made extrajudicially by the party to favor his interest. It is not admissible in evidence because they are inherently untrustworthy, and would open the door to fraud and fabrication of testimony. Q: Distinguish declaration against interest from admissions. A: DECLARATION AGAINST INTEREST Must have been made against the proprietary or pecuniary interest of the party Must have been made by a person who is either deceased or unable to testify

ADMISSIONS Need not be made against the proprietary or pecuniary interest of the party Made by a party himself, and is a primary evidence and competent though he be present in court and ready to testify

Must be made ante litem motam. (Regalado, Vol. II, p. 755, 2008 ed.)

May be made at any time. (Ibid)

Admissible even against third persons.

Admissible only against the party making the admission.

It is an exception to the hearsay rule. (Riano, Evidence: A Restatement for the Bar, p. 116, 2009 ed.)

It is NOT an exception to the hearsay rule. (Ibid.)

c. ADMISSION BY A THIRD PARTY Q: What are admissions by a third person? A: Admissions that is receivable in evidence against the party who has expressly referred another to

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE him for information in regard to an uncertain or disputed matter. But such a reference does not make a person referred to an agent for the purpose of making general admissions. The declarations are not evidence, unless strictly within the subject matter relation to which reference is made. When the reference was not made to any particular person but in general, the rule above-stated is not applicable. d. ADMISSION BY A CO-PARTNER OR AGENT Q: What are the requisites of an admission by a copartner or agent?

A: No, except in the following cases: 1. If made in the presence of the coconspirator who expressly or impliedly agreed therein; 2. Where the facts in said admission are confirmed in the individual extrajudicial confessions made by the co-conspirator after their apprehension; 3. As a circumstance to determine the credibility of the witness; or 4. As circumstantial evidence to show the probability of the co-conspirator’s participation in the offense. (Regalado, Vol. II, p. 761, 2008 ed.)

A:

f. ADMISSION BY PRIVIES 1.

2. 3.

The act or declaration of a partner or agent of the party must be within the scope of his authority; During the existence of the partnership or agency; and After the partnership or agency is shown by evidence other than such act or declaration (Sec. 29).

Q: What are the requisites of an admission by privies? A: 1. 2.

Q: Are admissions made after a partnership has been dissolved fall within the exception?

3.

There must be privity between the party and the declarant; The declarant as predecessor-in-interest made the declaration while holding the title to the property; and The admission relates to the property (Sec. 31).

A: GR: No, because such are made when the partnership ceased to exist.

g. ADMISSION BY SILENCE Q: When is there an admission by silence?

XPN: Where the admissions are made in connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partner in said winding up. (Regalado, Vol. II, p. 759, 2008 ed.) e. ADMISSION BY A CO-CONSPIRATOR

A: There is admission by silence when a party does or says nothing when he hears or observes an act or declaration made in his presence when such 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. Such may be given in evidence against him. (Sec. 32, Rule 130)

Q: What are the requisites of an admission by a coconspirator?

Q: What are the requisites of an admission by silence?

A:

A: 1.

The declaration or act be made or done during the existence of the conspiracy; The declaration or act must relate to the conspiracy; and The conspiracy must be shown by evidence other than the declaration or act (evidence aliunde) (Sec. 30)

1.

Q: Are extrajudicial admissions made by a conspirator after the conspiracy has terminated and even before trial admissible against the coconspirator?

5. 6.

2. 3.

2. 3. 4.

He must have heard or observed the act or declaration of the other person; He must have had the opportunity to deny it; He must have understood the statement; He must have an interest to object, such that he would naturally have done so, if the statement was not true; The facts were within his knowledge; and The fact admitted or the inference to be drawn from his silence is material to the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 issue (Sec. 32, Rule 130; People v. Paragsa, G.R. No. L-44060, July 20, 1978). Q: When is the rule on admission by silence inapplicable? A: The rule does not apply when a person is under an official investigation. For the silence of a person under a custodial investigation for the commission of an offense has the right to remain silent and to be informed of that right. (Sec. 12, Art. III, 1987 Constitution; Riano, Evidence: A Restatement for the Bar, p. 126, 2009 ed.) h. CONFESSIONS Q: Define confession. A: It is a categorical acknowledgment of guilt made by an accused of the offense charged or of any offense necessarily included therein, without any exculpatory statement or explanation (Sec. 33; Regalado, Vol. II, p. 764, 2008 ed.). Note: If the accused admits having committed the act in question but alleges a justification therefor, the same is merely an admission. (Ibid.)

Q: What are the classifications of confession? A: 1.

2.

Judicial confession – is one made by the accused before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain conviction. It is governed by Secs., 1, 3 & 4 of Rule 116. Extrajudicial confession – is one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of corpus delicti. It is governed by Sec. 33 of Rule 130.

Q: What are the requisites for a confession to be admissible as evidence? A: 1. 2. 3. 4.

5.

346

It must involve an express and categorical acknowledgement of guilt; Facts admitted must be constitutive of a criminal offense; It must have been given voluntarily; It must have been intelligently made, the accused realizing the importance or legal significance of his act; and There must have been no violation of Sec, 12 (Miranda rights), Art. III (Bill of Rights) of the 1987 Constitution (Regalado, Vol. II, p. 765, 2008 ed.).

Q: May the extra-judicial confession of an accused be admitted in evidence against his co-accused? A: GR: An extrajudicial confession is not admissible against the confessor’s co-accused. Said confession is hearsay evidence and violative of the res inter alios acta rule. XPN: It may be admitted in evidence against his co-accused in the following cases: 1. In case of implied acquiescence of the coaccused to the extrajudicial confession; 2. In case of interlocking confessions; 3. Where the accused admitted the facts stated by the confessant after being apprised of such confession; 4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the coconspirator; 6. When the confessant testified for his codefendant; and 7. Where the co-conspirator’s extrajudicial confession is corroborated by other evidence of record (Regalado, Vol. II, pp. 772-773, 2008 ed.). Q: Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail, were shot and killed. A certain Reynaldo Geron surfaced and executed an affidavit stating that a certain Lucio Columna told him that he was ordered to kill Atty. Tamargo by Lloyd Antiporda. Columna during his detention executed an extrajudicial confession where he implicated Antiporda to the crime. However, in a letter, Columna disowned the contents of his affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that Antiporda had no participation in the killings. The prosecutor dismissed the charges. On appeal, DOJ, initially reversed the dismissal but on MR subsequently ordered the withdrawal of the information. On the contrary, the RTC held that there was probable cause to hold the Antiporda for trial. CA held that the RTC judge gravely abused her discretion. Was the extrajudicial confession of Columna admissible as evidence? A: Columna’s extrajudicial confession affidavit was not admissible as evidence against Antiporda in view of the rule on res inter alios acta. The rule on

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her coaccused and is considered as hearsay against them. An exception to the res inter alios acta rule is an admission made by a conspirator under Sec. 30, Rule 130 of the Rules of Court. This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. Considering the paucity and inadmissibility of the evidence presented against the Antiporda, it would be unfair to hold them for trial (Tamargo v. Awingan, G.R. No. 177727, Jan. 19, 2010). Q: What is confessions?

the

doctrine

of

interlocking

6. 7. 8. 9. 10.

Scheme; Habit; Custom; Usage; and The like (Sec. 34, Rule 130)

6. HEARSAY RULE a. MEANING OF HEARSAY Q: Define hearsay evidence. A: Any evidence, whether oral or documentary, and its probative value is not based on personal knowledge of the witness but on the knowledge of some other person not on the witness stand. It also includes all assertions where, though derived from personal knowledge, the adverse party is not given an opportunity to cross-examine. (1999 Bar Question) Q: What are the elements of hearsay evidence? A:

A: It states that extrajudicial confessions independently made without collusion which are identical with each other in their essential details and corroborated by other evidence against the persons implicated, are admissible to show the probability of the latter’s actual participation in the commission of the crime.

1. 2.

There must be an out-of-court statement; and That the statement made out of court, is repeated and offered by the witness in court to prove the truth of the matters asserted by the statement. (Riano, Evidence: A Restatement for the Bar, p. 348, 2009 ed.)

i. SIMILAR ACTS AS EVIDENCE Q: What do similar acts of evidence prohibit? A: The rule prohibits the admission of the so-called “propensity evidence” which is evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act at another time. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. (Cruz v. Court of Appeals, 293 SCRA 239). Q: When is evidence of similar acts or previous conduct admissible? A: It is admissible where such evidence may prove: 1. Specific intent; 2. Knowledge; 3. Identity; 4. Plan; 5. System;

Q: What are the two concepts of hearsay evidence? A: 1.

2.

Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. (Regalado, Vol. II, p. 776, 2008 ed.) It also includes all assertions which have not been subjected to cross-examination by the adverse party at the trial in which they are being offered against him. (Herrera, Vol. V, p. 581, 1999 ed.)

b. REASON FOR EXCLUSION OF HEARSAY EVIDENCE Q: What is the hearsay rule? A: It states that a witness can testify only to those facts which he knows of based on his personal

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 knowledge or those which are derived from his own perception. (2007 Bar Question) Q: What is the rationale of excluding hearsay evidence? A: There is no opportunity for cross-examination hence it is not subject to the test of truth. Q: Brothers Billy & Luis were charged with murder for killing Vhong’s father. Vhong, however, was charged with parricide for being a co-principal to the crime. The two cases were tried jointly not until the two brothers withdrew their not guilty plea for murder. Thus, only Vhong’s case was tried on the merits. The prosecution offered in evidence the affidavits of Billy & Luis containing their extrajudicial confessions. The two brothers were, however, not presented by the prosecution on the witness stand. Thereafter, the trial court convicted the accused. Is the trial court correct? A: No. The failure to present Billy and Luis gives the affidavits the character of hearsay. It is hornbook doctrine that unless the affiants themselves take the witness stand to affirm the averments in their affidavits must be excluded from the judicial proceeding, being inadmissible hearsay. The voluntary admission of an accused made extrajudicially is not admissible in evidence against his co-accused when the latter had not been given an opportunity to hear him testify and crossexamine him (People v. Quidato, Jr., G.R. No. 117401. Oct. 1, 1998) Q: Distinguish hearsay evidence and opinion evidence. (2004 Bar Question) A: HEARSAY EVIDENCE Consists of testimony that is not based on personal knowledge of the person testifying

OPINION EVIDENCE Expert evidence based on the personal knowledge, skill, experience or training of the person testifying and evidence of an ordinary witness on limited matters

Q: Ben was charged with robbery and was arrested by police operatives by virtue of a warrant of arrest. In a press conference called by the police, Ben admitted that he had robbed the victim. The prosecution presented in evidence a newspaper clipping of the report of the reporter who was present during the press conference stating that Ben admitted the robbery. Is the newspaper clipping admissible in evidence against Ben?

statement may be shown where the fact that it is made is relevant. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such fact (Gotesco Investment Corp. v. Chatto, G.R. No. 87584, June 16, 1992). (2003 Bar Question) Q: What are the classifications of out-of-court statements? A: 1.

2.

3.

Hearsay – Its probative force depends, in whole or in part, on the competency and credibility of some persons other that the witness by whom it is sought to produce it (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3, 2001). It is inadmissible as evidence. Non-hearsay – This occurs when the purpose for introducing the statement is not to prove the truth of the facts asserted therein but only the making of the statements and are admissible in evidence when the making of the statement is relevant. These are the socalled independently relevant statements. Exceptions to the hearsay rule – Those which are hearsay but are considered as exceptions to the hearsay rule and are therefore admissible. (Secs. 37-47, Rule 130)

Q: What are independently relevant statements? A: These are statements which are relevant independently of whether they are true or not. They are neither hearsay nor an exception to the hearsay rule as the purpose thereof is not to prove the truth of the declaration or document (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3, 2001). They are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. Q: What are the classifications of independently relevant statements? A: 1. 2.

Those statements which are the very facts in issue; Those statements which are circumstantial evidence of the fact in issue. It includes the following: a. Statements of a person showing his state of mind, that is, his mental

A: Yes. Regardless of the truth or falsity of a statement, the hearsay rule does not apply and the

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE

b.

c.

d.

e.

condition, knowledge, belief, intention, ill-will and other emotions; Statements of a person which show his physical condition, as illness and the like; Statements of a person from which an inference may be made as to the state of mind of another, i.e., the knowledge, belief, motive, good or bad faith, etc. of the latter; Statements which may identify the date, place and person in question; and Statements showing the lack of credibility of a witness.

c. EXCEPTIONS TO THE HEARSAY RULE Q: What are the exceptions to the hearsay rule? A: 1. 2. 3. 4.

Dying declaration; Declaration against interest; Act or declaration about pedigree; Family reputation or tradition regarding pedigree; 5. Common reputation; 6. Part of the res gestae; 7. Entries in the course of business; 8. Entries in official records; 9. Commercial lists and the like; 10. Learned treaties; 11. Testimony or deposition at a former trial.

5.

Q: What factors should be considered in determining whether the declarant is conscious of his impending death? A: 1. Utterances; 2. Actual character and seriousness of his wounds; and 3. By the declarant’s conduct and the circumstances at the time he made the declaration, whether he expected to survive his injury. Note: A dying declaration may be oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down (People v. Boller, G.R. Nos. 144222-24, Apr. 3, 2002).

(2) DECLARATION AGAINST INTEREST (SEC. 38) Q: What are the requisites for the admissibility of declaration against interest? A: 1. 2.

(1) DYING DECLARATION (SEC. 37) Q: Define dying declaration.

3.

A: The ante mortem 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.

4.

Q: What are the requisites of dying declaration to be considered as an exception to the hearsay rule?

6.

A: 1. The declaration is one made by a dying person; 2. The declaration was made by said dying person under a consciousness of his impending death; 3. The declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else; 4. The declaration is offered in a case wherein the declarant’s death is the subject of the inquiry; and

The declarant is competent as a witness had he survived. (Geraldo v. People, G.R. No. 173608, Nov. 20, 2008; Riano, Evidence: A Restatement for the Bar, p. 370, 2009 ed.)

5.

That the declaration is one made by a dying person; That the declaration was made by said dying person under a consciousness of his imminent death; That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else; That the declaration is offered in a case where the declarant’s death is the subject of the inquiry; The delcarant is competent as a witness had he survived; The declarant should have died. (Riano, p.379)

Q: Distinguish declaration against interest from admission against interest. A: DECLARATION AGAINST INTEREST Made by a person who is neither a party nor in privity with a party to the suit and are secondary evidence but constitute an

ADMISSION AGAINST INTEREST Made by a party to a litigation or by one in privity with or identified in legal interest with such party.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What does “pedigree” include?

exception to the hearsay rule. Admissible only when the declarant is unavailable as a witness.

Admissible whether or not the declarant is available as a witness.

Q: Harry Pattinson was charged with the crime of kidnapping of Edward Radcliffe. One of the testimonies presented by the prosecution was that of Emma Granger, she testified that Edward confided to her that he and Harry’s wife Bella were having an affair. Undoubtedly, his wife's infidelity was ample reason for Harry to contemplate revenge. Consequently, the trial court convicted Harry based on the testimonies of the witnesses. Was the testimony of Emma admissible as evidence? A: Yes. Edward’s revelation to Emma regarding his illicit relationship with Harry’s wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. Hector having been missing since his abduction, cannot be called upon to testify. His confession to Emma, definitely a declaration against his own interest, since his affair with Bella was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. (People v. Theodore Bernal, G.R. No. 113685, June 19, 1997) (3) ACT OR DECLARATION ABOUT PEDIGREE (SEC. 39)

A: It includes: 1. Relationship; 2. Family genealogy; 3. Birth; 4. Marriage; 5. Death; 6. Dates when and the place where these facts occurred; 7. Names of the relatives; and 8. Facts of family history intimately connected with pedigree. (Sec. 39, Rule 130) (4) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE (SEC. 40) Q: What are the requisites for the admissibility of family reputation or tradition regarding pedigree? A: 1. 2.

3.

Q: What are the ways to establish family reputation or tradition in respect to one’s pedigree? A: 1.

Q: What are the requisites for the admissibility of acts or declarations about pedigree? 2. A: 1. 2. 3. 4. 5.

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The declarant is dead or unable to testify; The pedigree should be in issue; The declarant must be a relative of the person whose pedigree is in question; The declaration must be made before the controversy occurred; and The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. (Tecson v. COMELEC, G.R. No. 161434, Mar. 3, 2004)

There is controversy in respect to the pedigree of any member of the family; The reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and The witness testifying to the reputation or tradition regarding pedigree of the person concerned must be a member of the family of said person either by consanguinity or affinity.

Through testimony in open court of a witness who must be a member of the family either by consanguinity or affinity; Through entries in: a. Family bible; b. Family books or charts; c. Engravings on rings; or d. Family portraits and the like.

Q: Distinguish Sec. 39 from Sec. 40. A: SECTION 39 Act or declaration about pedigree Witness need not be a member of the family

SECTION 40 Family reputation or tradition regarding pedigree Witness is a member of the family

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE

Relation of the declarant and the person subject of the inquiry must be established by independent evidence

The witness is the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family (Francisco, p. 292, 1992 ed.)

Testimony is about what declarant, who is dead or unable to testify, has said concerning the pedigree of the family

Testimony is about family reputation or tradition covering matters of pedigree

Q: What are the reasons for the admissibility of common reputation? A: 1.

2.

Necessity arising from the inherent difficulty of obtaining any other evidence than that in the nature of common reputation; and Trustworthiness of the evidence arising from: a.

(5) COMMON REPUTATION (SEC. 41) b.

Q: What is common reputation? A: It is 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, Vol. II, p. 787, 2008 ed.) Note: As a general rule, the reputation of a person should be that existing in the place of his residence; it may also be that existing in the place where he is best known. (Ibid.)

Q: What are the requisites for the admissibility of common reputation? A: 1. 2. 3.

4.

The facts must be of public or general interest and more than 30 years old; The common reputation must have been ancient, i.e. 30 years old; The reputation must have been one formed among a class of persons who were in a position to have some sources of information and to contribute intelligently to the formation of the opinion; and The common reputation must have been existing previous to the controversy.

(6) RES GESTAE (SEC.42) Q: What is res gestae? A: It is a Latin phrase which literally means "things done." As an exception to the hearsay rule, it refers to those exclamations and statements by either the participants, victims, or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as spontaneous reactions or utterances inspired by the excitement of the occasion, and there was no opportunity for the declarant to deliberate and fabricate a false statement (Capila v. People, G.R. No. 146161, July 17, 2006). Q: What are the requisites for the admissibility of res gestae? A: 1. 2.

Q: What can reputation?

be

established

by

common

A: 1. 2. 3. 4.

Matters of public interest more than 30 years old; Matters of general interest more than 30 years old; Matters respecting marriage or moral character and related facts; Individual moral character.

The supposition that the public is conversant with the subject to be proved because of their general interest therein; and The fact that the falsity or error of such evidence could be exposed or corrected by other testimony since the public are interested in the same. (Francisco, pp. 296-297, 1992 ed.)

3.

The principal act or the res gestae is a startling occurrence; The statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and The statement made must concern the occurrence in question and it’s immediately attending circumstances (Capila v. People, G.R. No. 146161, July 17, 2006).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Distinguish res gestae from dying declaration.

iii.

A:

iv. RES GESTAE It is the event itself which speaks

May be made by the killer after or during the killing or that of a third person May precede, or accompany or follow the principal act Justification is the spontaneity of the statement

DYING DECLARATION A sense of impending death takes the place of an oath and the law regards the declarant as testifying

2.

Requisites: There must be a startling occurrence; The statement must relate to the circumstances of the startling occurrence; iii. The statement must be spontaneous. i. ii.

Q: What is the reason for the rule on res gestae? A: The reason for the rule is human experience. It has been shown that under certain external circumstances of physical or mental shock, the state of nervous excitement which occurs in a spectator may produce a spontaneous and sincere response to the actual sensations and perceptions produced by the external shock. As the statements or utterances are made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, such statements or utterances may be taken as expressing the real belief of the speaker as to the facts he just observed. The spontaneity of the declaration is such that the declaration itself may be regarded as the event speaking through the declarant rather than the declarant speaking for himself (Ibid.).

Q: Anthony raped Melissa. After raping Melissa, Anthony fled. Melissa then rushed to the police station and told Police Officer Gilbert what had happened. Anhthony was charged with rape. During the trial, Melissa can no longer be located. If the prosecution presents Gilbert to testify on what Melissa had told him, would such testimony of Gilbert be hearsay? Explain. A: No. It is part of res gestae. It is also an independently relevant statement. Buloy testified based on his personal knowledge; that is, he was testifying to the fact that Reyna told him that she was raped by Sam and not to the truth of Reyna’s statement (People v. Gaddi, G.R. No. 74065, Feb. 27, 1989). (2005 Bar Question) (7) ENTRIES IN THE ORDINARY COURSE OF BUSINESS/SHOP-BOOK RULE (SEC. 43)

Q: What are the two types of res gestae? A: 1.

Verbal Acts – Utterances which accompany some act or conduct to which it is desired to give legal effect. The res gestae is the equivocal act material to the issue, and giving it legal significance. It must be contemporaneous with or must accompany the equivocal act in order to be admissible. Requisites: i. The fact or occurrence characterized must be equivocal; ii. The verbal acts must characterize or explain the equivocal act;

352

Spontaneous Statements - Statements or exclamations made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The res gestae is the startling occurrence. It may be prior to or simultaneously with, or subsequent with the startling occurrence.

Can be made by the victim only Confined to matters occurring after the homicidal act Justification is the trustworthiness, being given by the person who was aware of his impending death

The equivocal act must be relevant to the issue; and The verbal acts must be contemporaneous with the equivocal act.

Q: What are the requisites for the admissibility of entries in the course of business? A: 1. 2.

3. 4.

The person who made the entry must be dead or unable to testify; The entries were made at or near the time of the transactions to which they refer; The entrant was in a position to know the facts stated in the entries; The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 5.

The entries were made in the ordinary or regular course of business or duty. (Regalado, Vol. II, pp. 791-792, 2008 ed.)

Q: How is regularity of the entries proved? A: It may be proved by the form in which they appear as entries in the books/ledgers. There is no need to present for testimony the clerk who manually made the entries. The person who supervised such clerk is competent to testify that: 1. The account was prepared under his supervision; and 2. That the entries were regularly entered in the ordinary course of business (Regalado, Vol. II, p. 792, 2008 ed.). Q: Is there an instance where business entries may be admitted in evidence even when the declarant is alive? A: The entries will not be admitted as an exception to the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. (Ibid.)

Q: Should entries in the police blotter be given probative value? A: No, as they are not conclusive evidence of the truth of the contents but merely of the fact that they were recorded. (People v. Cabrera, Jr., G.R. No. 138266, Apr. 30, 2003) Q: Distinguish entries in the course of business from entries in official record. A: ENTRIES IN THE COURSE OF BUSINESS It is sufficient that the entrant made the entries pursuant to a duty be it legal, contractual, moral or religious. Entrant must be dead or unable to testify.

Q: What are the requisites for the admissibility of commercial list and the like? A: 1. 2.

Q: What is an official record?

Q: What are the requisites for the admissibility of entries in official records?

3. 4.

A: 1.

2.

3.

Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty especially enjoined by law; 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. (Ibid.)

Q: What is the probative value of these entries? A: It is only prima facie evidence of the fact stated therein.

Statements of matters of interest to persons engaged in an occupation; Statements must be contained in a list, register, periodical, or other published compilation; Compilation is published for use by persons engaged in that occupation; and Such is generally relied upon by them.

Q: What are the examples of commercial lists and the like?

A: 1.

No such requirement

(9) COMMERCIAL LIST AND THE LIKE (SEC. 45)

(8) ENTRIES IN OFFICIAL RECORDS (SEC. 44)

A: It may be a: 1. Register; 2. Cash book; or 3. An official return or certificate (Regalado, Vol. II, p. 793, 2008 ed.)

ENTRIES IN OFFICIAL RECORD The entrant, if a private individual, must have acted pursuant to a specific legal duty specially enjoined by law.

2. 3.

4.

Trade journals reporting current prices and other market data; Mortality tables compiled for life insurance; Abstracts of title compiled by reputable title examining institutions or individuals; or Business directories, animal pedigree registers, and the like. (Francisco, p. 339, 1992 ed.) (10) LEARNED TREATIES (SEC. 46)

Q: When are learned treatises admissible? A: 1.

When the court can take judicial notice of them; or

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

When an expert witness testifies that the author of such is recognized as expert in that profession. (Sec. 46)

relates and who possesses special knowledge on questions on which he proposes special knowledge to express an opinion. (Regalado, Vol. II, p. 802, 2008 ed.)

Q: What are the examples of learned treatises? A: 1. 2. 3.

Historical works; Scientific treatises; or Law (Francisco, pp. 340-341, 1992 ed.)

(11) TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING (SEC. 47) Q: What are the requisites for the admissibility of testimony or deposition at a former proceeding? A: 1. Witness whose testimony is offered in evidence is dead or unable to testify; 2. The testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; 3. Former case involved the same subject as that in the present case, although on different causes of action; 4. Issue testified to by the witness in the former trial is the same issue involved in the present case; and 5. Adverse party had an opportunity to cross-examine the witness in the former case. Q: What are the grounds, aside from death, which make a witness unable to testify in a subsequent case? A: 1.

2. 3.

4.

Insanity or mental incapacity or the former witness’ loss of memory through old age or disease; Physical disability by reason of sickness or advanced age; The fact that the witness has been kept away by contrivance of the opposite party; or The fact that after diligent search the former witness cannot be found. (Francisco, p. 342, 1992 ed.) 7. OPINION RULE a. OPINION OF EXPERT WITNESS

Q: Who is an expert witness? A: He is one who belongs to the profession or calling to which the subject matter of the inquiry

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Q: Is there a definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert? A: None. It is sufficient that the following factors are present: 1. Training and education; 2. Particularity, first-hand familiarity with the facts of the case; and 3. Presentation of authorities or standards upon which his opinion is based. (People v. Abriol, G.R. No. 123137, Oct. 17, 2001) Q: What is expert evidence? A: It is the testimony of a person (expert witness) possessing knowledge not usually acquired by other persons in a particular subject matter. Note: It is admissible when the matter to be established requires expertise and the witness have been qualified as an expert.

Q: What is the test in determining whether there is need to resort to expert evidence? A: The test is whether the opinion called for will aid the court in resolving an issue. b. OPINION OF ORDINARY WITNESS Q: What is an opinion? A: It is an inference or conclusion based or drawn from the facts established. Q: Is the opinion of a witness admissible in evidence? A: GR: The opinion of a witness is not admissible. The witness must testify to facts within their knowledge and may not state their opinion even on their examination. XPN: 1. Opinion of an expert witness (Sec. 49); 2. Opinion of an ordinary witness as to: a. The identity of a person about whom he has adequate knowledge; b. A handwriting with which he has sufficient familiarity;

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE c.

d.

The mental sanity of a person with whom he is sufficiently acquainted; and The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50). 8. CHARACTER EVIDENCE a. CRIMINAL CASES b. CIVIL CASES

Q: When may character evidence be admitted in evidence?

is pertinent to the issue of character involved in the case (Sec. 51). Note: As to witnesses to both criminal and civil actions, the bad moral character of a witness may always be proved by either party but not evidence of his good moral character, unless such character has been impeached (Sec. 14, Rule 132).

Q: What are the requirements provided by the rules with respect to the nature or substance of the character evidence which may be admissible? A: 1.

A: GR: Character evidence is not admissible in evidence. XPN: 1. Criminal cases: a. The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged; b. The prosecution may not prove the bad moral character of the accused which is pertinent to the moral trait involved in the offense charged, unless in rebuttal when the latter opens the issue by introducing evidence of his good moral character; or c. As to the offended party, his good or bad moral character may be proved as long as it tends to establish in any reasonable degree the probability or improbability of the offense charged. XPN to the XPN: i. In rebuttal, proof of the bad character of the victim is not admissible if the crime was committed through treachery and premeditation; and ii. In rape cases, the evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case (Rape shield, Sec. 6, R.A. 8505). 2.

Civil cases – The moral character of either party thereto cannot be proved unless it

2.

3.

With respect to the accused, such character evidence must be “pertinent to the moral trait involved in the offense charged.” With respect to the offended person, it is sufficient that such character evidence “may establish in any reasonable degree the probability or improbability of the offense charged.” With respect to the witness, such character evidence must refer to his “general reputation for truth, honesty or integrity,” that is affecting his credibility. (Regalado, Vol. II, p. 814, 2008 ed.)

9. RULE ON EXAMINATION OF A CHILD WITNESS a. APPLICABILITY OF THE RULE Q: In what cases is the Rule on Examination of a Child Witness applicable? A: It shall apply in all criminal and non-criminal proceedings involving child witnesses. This Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses of a crime (Sec. 1). Q: When are the provisions of the Rules of Court applicable in the examination of a child witness? A: The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character (Sec. 32). b. MEANING OF “CHILD WITNESS” Q: Who is a child witness? A: A child witness is any person who at the time of giving testimony is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 cruelty, exploitation, or discrimination because of a physical or mental disability or condition [Sec. 4(a)]. Q: What is the difference between a child witness and an ordinary witness? A: CHILD WITNESS Only the judge is allowed to ask questions to a child witness during preliminary examination Testimony in a narrative form is allowed Leading questions are allowed The child witness is assisted by a support person

ORDINARY WITNESS Opposing counsels are allowed to ask questions during preliminary examination Testimony in a narrative form is not allowed Leading questions are generally not allowed An ordinary witness is not assisted by a support person

Q: Who is a facilitator? A: He is a person appointed by the court to pose questions to a child. [Sec. 4(c)] The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Q: Who is a support person? A: He is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. [Sec. 4(f)] Q: What is an in-depth investigative interview or disclosure interview? A: It is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. [Sec. 4(i)] Q: When may the court appoint a guardian ad litem for a child? A: The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified [Sec. 5(a)]. Q: What determines the best interests of the child?

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A: It is determined by the totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the child and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child [Sec. 4(g)]. c. COMPETENCY OF A CHILD WITNESS Q: What is the rule on the competency of a child witness? A: 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 doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. Q: What must a party seeking competency examination present? A: He must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] Q: Where does the burden of proof lie? A: It lies on the party challenging the competency of the child [Sec. 6(b)]. Q: Who are the persons allowed at a competency examination? A: Only the following are allowed at a competency examination: 1. The judge and necessary court personnel; 2. The counsel for the parties; 3. The guardian ad litem, if any; 4. One or more support persons for the child; and 5. The defendant, unless the court determines that competence can be fully evaluated in his absence. [Sec. 6(c)] Q: Who shall examination?

conduct

the

competency

A: It shall be conducted only by the judge but the counsel for the parties can submit questions to the judge that he may, in his discretion, ask the child. [Sec. 6(d)]

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE Q: What are the appropriate questions to be asked to the child during competency examination? A: The questions to be asked are: 1. Appropriate to the age and developmental level of the child; 2. Not related to the issues at trial; and 3. Shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. [Sec. 6(e)] Q: What is meant by developmental level? A: It refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. [Sec. 4(h)] Q: What is the duty of the court regarding the competency of the child? A: It has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)] Q: In case of a child witness, what should the court consider in determining his competency? A: The court must consider his capacity: 1. At the time the fact to be testified to occurred such that he could receive correct impressions thereof; 2. To comprehend the obligation of an oath; and 3. To relate those facts truly at the time he is offered as a witness. The court should take into account his capacity for observation, recollection and communication. (Regalado, Vol. II, pp. 739-740, 2008 ed.) d. EXAMINATION OF A CHILD WITNESS Q: Does the testimony of child witness need corroboration? A: Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases (Sec. 22). Note: The straightforward testimony of a child witness can be given full weight and credit. When a child says that she has been raped, she says in effect all that is

necessary to show that rape has indeed been committed. The silence of a rape victim or failure to immediately disclose her plight to the authorities is no proof at all that the charges are baseless or fabricated. More often than not, a victim would bear the ignominy and pain in private rather than reveal her shame to the whole world or risk the danger of physical harm by the rapist (People v. Pioquinto, G.R. No. 168326, Apr. 11, 2007).

Q: Boy was charged with rape of his 10 year old stepdaughter, Angie, to which he pleaded not guilty. For the prosecution, it presented as witnesses the victim and a Medico Legal Certificate issued by Dr. Luna, the results of which showed that the victim suffered hymenal laceration. For the defense, he vehemently denied the charges and presented an alibi. RTC, affirmed with modification by the CA convicted the accused. Should the testimony of the child be given full weight and credit? A: Testimonies of child victims are given full weight and credit, for when a woman or a girl-child says that she has been raped; she says in effect all that is necessary to show that rape was indeed committed. Youth and immaturity are generally badges of truth and sincerity. Angie’s testimony that she was raped by the accused is highly trustworthy not only because of the fact that she was merely a young lass below twelve years of age at the time she testified before the trial court who would not concoct a sordid tale against his stepfather whom she endearingly calls “papa” but more so because of her candid, positive, direct, and consistent narration of how her stepfather sexually abused her. She vividly recounted that she was awakened one night when she felt someone touching her body. Angie identified the aggressor as the accused who immediately covered her mouth with his hand (People v. Sobusa, G.R. No. 181083, Jan. 21, 2010). Q: When may the public be excluded from the courtroom in which a child testifies? A: When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties (Sec. 23). e. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS Q: When may the court order that the testimony of the child be taken by live-link television? Explain. A: The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Sec. 25). (2005 Bar Question)

Q: Who are the persons allowed to preside and be present in the videotaped deposition? A: The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; (6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment. g. HEARSAY EXCEPTION IN CHILD ABUSE CASES

f. VIDEOTAPED DEPOSITION OF A CHILD WITNESS Q: When may the court order that the testimony of the child be taken by videotaped deposition? Explain. A: If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (Sec.27[b])

Q: Does the hearsay rule apply in child abuse cases? A: A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: 1.

If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (Sec.27[e])

a.

Note: The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (Sec.27[d]) Note: After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. (Sec.27[j])

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Before such hearsay statement maybe admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object.

b.

2.

If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability (Sec. 28).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE h. SEXUAL ABUSE SHIELD RULE Q: What is sexual abuse shield rule? A: GR: It states that the following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and 2. Evidence offered to prove the sexual predisposition of the alleged victim [Sec. 30(a)].

d.

"This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law."

XPN: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible [Sec. 30(b)]. i. PROTECTIVE ORDERS Q: What are the other measures provided under the rule for the protection of the privacy and safety of a child witness? A: 1.

Confidentiality of records e. GR: The records may be released only to the ff: a. Members of the court staff for administrative use; b. The prosecuting attorney; c. Defense counsel; d. The guardian ad litem; e. Agents of investigating law enforcement agencies; and f. Other persons as determined by the court XPN: Upon written request and order of the court [Sec. 31(a)].

2.

thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court; Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice:

Protective order – Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: a. Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem; b. No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial; c. No person shall be granted access to the tape, its transcription or any part

f.

g.

No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. This protective order shall remain in full force and effect until further order of the court. [Sec. 31(b)].

3.

Additional protective orders – The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child [Sec. 31(c)].

4.

Publication of identity contemptuous: Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 be liable to the contempt power of the court. (Sec. 31[d]) 5.

Physical safety of child; exclusion of evidence GR: A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. XPN: The court may, however, require the child to testify regarding personal identifying information in the interest of justice [Sec. 31(e)].

6.

Destruction of videotapes and audiotapes Videotapes and audiotapes produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after 5 years have elapsed from the date of entry of judgment [Sec. 31(f)].

7.

Records of youthful offender: confidential a. Where he has been charged before any prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. b. Where he has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him, all the records of his case shall also be considered as privileged and may not be disclosed except: i. To determine if a defendant may have his sentence suspended under Art. 192 of P.D. 603 or if he may be granted probation under the provisions of P.D. 968; or ii. To enforce his civil liability, if said liability has been imposed in the criminal action [Sec. 31(g)].

Q: Maximo Gwapito, a 25-year old jeepney driver, and his 7-year old son, Maximo Gwapito, Jr., stepped out of their house in order to buy food. Upon reaching the street, father and son encountered Richard Sputnik, Ron Sputnik, Jeric Angas and Mark Bayawak. The four were

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apparently waiting for Maximo Gwapito. They dragged him to a nearby warehouse. Thereafter, a gunshot was heard from the warehouse. Maximo Gwapito was seen running out of the warehouse followed by the four malefactors. He fell on the ground near the street corner, Angas shot him four or five times. The tragic occurence was witnessed by the victim's son and wife. It was only after 8 years when two of the four culprits were convicted by the trial court. On appeal, they impugned the testimony of the child that he was only 7 years old when he witnessed the shooting, and that he testified eight years later or long after that extraordinary event. Is the contention tenable? A: No. The court in several cases had given credence to the testimony of children who had witnessed the death of their parents. In the case of Maximo, Jr., the horrible manner in which his father was killed must have been indelibly engraved in his uncluttered memory so much so that the passage of time could not efface it. When he testified, he was already fifteen years old and a third year high school student. He was certainly a competent witness. (People v. Sabater, G.R. No. L-38169, Feb. 23, 1978) F. OFFER AND OBJECTION Q: What evidence shall be considered by the court? A: GR: The court shall consider only the evidence which has been formally offered. The purpose for which the evidence is offered must be specified (Sec. 34). XPN: 1. Marked exhibits not formally offered may be admitted provided it complies with the following requisites: a. must be duly identified by testimony duly recorded; and b. must have been incorporated in the records of the case (Ramos v. Dizon, G.R. No. 137247, Aug. 6, 2006); 2. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speedy administration of justice; 3. In summary judgments under Rule 35 where the judge based his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court;

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 4. 5. 6.

Documents whose contents are taken judicial notice of by the court; Documents whose contents are judicially admitted; or Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of crossexamination of the witness who testified on them during the trial.

A:

1. OFFER OF EVIDENCE Q: What are the rationales in stating the purpose for which the evidence is being offered? A: 1. For the court to determine whether that piece of evidence should be admitted or not; 2. Evidence submitted for one purpose may not be considered for any other purpose; and 3. For the adverse party to interpose the proper objection. Q: Noelle filed a complaint for recovery of possession and damages against Kristina. In the course of the trial, Noelle marked his evidence but his counsel failed to file a formal offer of evidence. Kristina then presented in evidence tax declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in favor of Kristina, saying that Noelle failed to prove sole ownership of the property in the face of Kristina’s evidence. Was the court correct? Explain briefly. A: Yes. The court shall consider no evidence which has not been formally offered. The trial court rendered judgment considering only the evidence offered by Kristina. The offer is necessary because it is the duty of the judge to rest his findings of fact and his judgment only and strictly upon the evidence offered by the parties at the trial (People v. Pecardal, G.R. No. 71381, Nov. 24, 1986). (2007 Bar Question) Q: What are the stages in the presentation of documentary evidence?

2. WHEN TO MAKE AN OFFER Q: How and when should a party make the offer of evidence? A: Testimonial Evidence Offer must be made at the time the witness is called to testify. Every time a question is propounded to a witness, there is an implied offer of the evidence sought to be elicited by the question.

Documentary and Object Evidence Must be made after the presentation of party’s testimonial evidence, and before resting his case. The evidence is only offered once, after all the testimonial evidence and prior to the resting of the case for a party.

Note: The offer shall be done orally unless allowed by the court to be in writing. ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

Q: What are the purposes of objections? A: 1. 2.

3. 4.

5.

To keep out inadmissible evidence that would cause harm to a client’s cause; To protect the record, i.e. to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal; To protect a witness from being embarrassed by the adverse counsel; To expose the adversary’s unfair tactics like his consistently asking obviously leading questions; and To give the trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction. (Riano, Evidence: A Restatement for the Bar, p. 462, 2009 ed.)

Q: When should an objection be made? A: Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent. An offer of evidence in writing shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for objection must be specified (Sec. 36). Q: What is the difference between a "broadside" objection and a specific objection to the admission of documentary evidence? A: A broadside objection is a general objection such as incompetent, irrelevant and immaterial and does not specify any ground; while a specific objection is limited to a particular ground. (1994 Bar Question) Q: What are the two kinds of objections? Give an example of each. A: 1.

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Irrelevant – The evidence being presented is not relevant to the issue (e.g. when the prosecution offers as evidence the alleged offer of an insurance company to pay for the damages suffered by the victim in a homicide case); and

Incompetent – The evidence is excluded by law or rules (Sec. 3, Rule 138) (e.g. evidence obtained in violation of the Constitutional prohibition against unreasonable searches and seizures).

Alternative Answers: 1. Specific objections – e.g. parole evidence and best evidence rule General objections – e.g. continuing objections (Sec. 37). 2. a. objection to a question propounded in the course of the oral examination of the witness; and b. objection to an offer of evidence in writing. (1997 Bar Question) 4. REPETITION OF AN OBJECTION Q: What is the rule on continuing objections? A: GR: When it becomes reasonably apparent in the course of the examination that the questions asked are of the same class as those to which objection has been made (whether 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). XPNs: 1. Where the question has not been answered, it is necessary to repeat the objection when the evidence is again offered or the question is again asked; 2. Incompetency is shown later; 3. Where objection refers to preliminary question, objection must be repeated when the same question is again asked during the introduction of actual evidence; 4. Objection to evidence was sustained but reoffered at a later stage of the trial; 5. Evidence is admitted on condition that its competency or relevance be shown by further evidence and the condition is not fulfilled, the objection formerly interposed must be repeated or a motion to strike out the evidence must be made; and 6. Where the court reserves the ruling on objection, the objecting party must request a ruling or repeat the objection.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 5. RULING Q: When should the court make its ruling on the objection? A: It must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling (Sec. 38). 6. STRIKING OUT OF AN ANSWER Q: What are the modes of excluding inadmissible evidence? A: 1. 2.

Objection – when the evidence is offered. Motion to strike out or expunge: a. When the witness answers prematurely before there is reasonable opportunity for the adverse party to object, and such objection is found to be meritorious; b. When the answers are incompetent, irrelevant, or improper (Sec. 39); c. When the witness becomes unavailable for cross-examination through no fault of the cross-examining party; d. When the answer is unresponsive; e. When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled (Riano, Evidence: A Restatement for the Bar, p. 467, 2009 ed.); f. When a witness has volunteered statements in such a way that the party has not been able to object thereto; g. When a witness testifies without a question being addressed to him; or h. When a witness testifies beyond the ruling of the court prescribing the limits within which he may answer.

the offering party. (Riano, Evidence: A Restatement for the Bar, p. 471, 2009 ed.) Q: May a direct testimony given and allowed without a prior formal offer be expunged from the record? A: No. When such testimony is allowed without any objection from the adverse party, the latter is estopped from questioning the non-compliance with the requirement. Q: What is the remedy if a court improperly excludes an otherwise admissible evidence? A: The party’s remedy is to tender the excluded evidence by: 1. Testimonial evidence – State for the record the name and other personal circumstances of the witness and the nature and substance of the proposed testimony. 2. Object/documentary evidence – Attach to or make it a part of the record (Sec. 40). 7. TENDER OF EXCLUDED EVIDENCE Q: What is tender of excluded evidence or offer of proof? A: When an attorney is not allowed by the court to present testimony which he thinks is competent, material and necessary to prove his case, he must make an offer of proof. This is the method properly preserving the record to the end that the question may be saved for purposes of review. (Caraig, Revised Rules of Evidence 2004 ed., p. 337) Q: How is tender of excluded evidence made? A: 1.

2.

Q: May objections be waived? A: Yes, because the right to object is merely a privilege which the party may waive. (People v. Martin, G.R. No. 172069, Jan. 30, 2008) Q: What is the extent of the waiver for failure to object? A: It only extends to the admissibility of the evidence. It does not involve an admission that the evidence possesses the weight attributed to it by

As to documentary or object evidence: It may have the same attached to or made part of the record. As to oral evidence: It may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

Q: What are the purposes of tender of excluded evidence? A: 1.

To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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To create and preserve a record for appeal. (Riano, Evidence: A Restatement for the Bar, p. 477, 2009 ed.)

Q: Distinguish English Exchequer rule from harmless error rule. A:

Q: Distinguish offer of proof from offer of evidence. A: OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE

OFFER OF EVIDENCE

Only resorted to if admission is refused by the court for purposes of review on appeal

Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision

Q: How is an offer of evidence made? A: 1.

2.

3.

Before the court has ruled on the objection, in which case its function is to persuade the court to overrule the objection or deny the privilege invoked; After the court has sustained the objection, in which case its function is to preserve for the appeal the evidence excluded by the privilege invoked; Where the offer of proof includes the introduction of documents, or any of the physical evidence, the same should be marked for identification so that they may become part of the record. (Herrera, Vol. VI, p. 344)

Q: When is offer or proof not required? A: 1.

2.

3.

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When the question to which an objection has been sustained clearly reveals on its face the substance, purpose and relevancy of the excluded evidence; When the substance, purpose and relevancy of the excluded evidence were made known to the court either in the court proceedings and such parts appears on record; Where evidence is inadmissible when offered and excluded, but thereafter becomes, it must, be re-offered, unless the court indicates that a second offer would be useless. (Herrera, Vol. VI, p. 344-345)

ENGLISH EXCHEQUER RULE It provides that a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required new trial.

HARMLESS ERROR RULE The appellate court will disregard an error in the admission of evidence unless in its opinion, some substantial wrong or miscarriage of justice has been occasioned.

Note: We follow the harmless error rule, for in dealing with evidence improperly admitted in the trial, courts examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, appellate courts disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced part (People v. Garcia, G.R. No. 105805, Aug. 16, 1994).

G. SUPREME COURT RULINGS AS OF DECEMBER 2010 EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et al. G.R. No. 177861, July 13, 2010 (ABAD, J.) Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines as immigrants and they had 11children (respondents herein). Subsequently, a woman named Tiu Chuan (Tiu) served as the housemaid and upon Keh’s death, the respondent children found out that the Tiu children claims that they are also Lee and Keh’s children. Respondent children then filed before the RTC a special proceeding for the deletion from the certificate of live birth of Emma Lee, one of Lee’s other children, the name Keh and replace the same with the name Tiu to indicate her true mother’s name. Respondent children then filed an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lee’s presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it was oppressive and violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lee’s stepmother. The RTC quashed the subpoena it issued for being unreasonable and oppressive considering that Tiu was already very old and that the obvious object of the subpoena was to badger her into admitting that she was Emma Lee’s mother. ISSUE: Can Tiu, as the stepmother, be compelled to testify in said proceeding? (Yes) HELD: As the CA correctly ruled, the grounds cited— unreasonable and oppressive—are proper for subpoena ad duces tecum or for the production of documents and things in the possession of the witness, a command that has a tendency to infringe on the right against invasion of

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: SECTION 4. Quashing a 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. Taking in mind the ultimate purpose of respondent children’s action, obviously, they would want Tiu to testify or admit that she is the mother of Lee’s other children, including petitioner Emma Lee. Keh had died and so could not give testimony that Lee’s other children were not hers. The respondent children have, therefore, a legitimate reason for seeking Tiu’s testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness. SECTION 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. The above is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure chose to extend the prohibition to all kinds of actions, whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants. But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to "direct" ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides: Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Consequently, Tiu can be compelled to testify against petitioner Emma Lee. LEIGHTON CONTRACTORS PHILIPPINES, INC. v. CNP INDUSTRIES INC. G.R. No. 160972, March 9, 2010 (CORONA, J.) Respondent CNP Industries, Inc. is the subcontractor of petitioner Leighton Contractors Philippines, Inc. in a construction project. The subcontract was based on a Fixed Lump Sum of P44,223,909. However, due to some revisions made by CNP in its designs, it incurred an additional amount of P13,442,882 which was not renegotiated with Leighton. CNP now claims for the payment of the additional expenses, contending that it was not part of the sub-contract price. Leighton however refused the same, reiterating that the sub-contract is for a fixed lump sum price. The Construction Industry Arbitration Commission (CIAC) ruled in favor of CNP. This decision was affirmed by the CA. Hence this petition. ISSUE: Is Leighton liable to pay the additional cost based on the parol evidence presented by CNP? (NO)

HELD: The parol evidence rule, embodied in Section 9, Rule 130 of the Rules of Court holds that when the terms of an agreement have been reduced into 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. It, however, admits of exceptions such as when the parties subsequently modify the terms of their original agreement Nevertheless, respondent contends that when Bennett signed the August 12, 1997 progress report, petitioner approved the additional cost estimates, in effect modifying the original agreement in the subcontract. Respondent therefore claims an exception to the parole evidence rule. In contracts for a stipulated price like fixed lump-sum contracts, the recovery of additional costs is governed by Article 1724 of the Civil Code. Settled is the rule that a claim for the cost of additional work arising from changes in the scope of work can only be allowed upon the: (1) Written authority from the developer or project owner ordering or allowing the written changes in work and (2) Written agreement of parties with regard to the increase in price or cost due to the change in work or design modification. Furthermore, compliance with the two requisites of Article 1724, a specific provision governing additional works, is a condition precedent for the recovery. The absence of one or the other condition bars the recovery of additional costs. Neither the authority for the changes made nor the additional price to be paid therefor may be proved by any other evidence. OFFICE OF THE OMBUDSMAN (VISAYAS) v. RODOLFO ZALDARRIAGA G.R. No. 175349, June 22, 2010 (PERALTA, J.) Respondent Rodolfo Zaldarriaga was the Municipal Treasurer of the Municipality of Lemery, Iloilo. Upon audit of Zaldarriaga’s cash and accounts, it was discovered that he had a deficiency which he failed to restitute despite notice. Instead, Zaldarriaga sent letters to State Auditor Garachico requesting for a bill of particulars on his alleged accountability. The COA, however, failed to clarify the basis of the shortage and filed a complaint against him. When the Office of the Provincial Treasurer conducted its own investigation as to the shortage, it was found out that there really is no shortage. The COA then conducted a second audit and concluded that there is no shortage. Zaldarriage then moved for the dismissal of the complaint against him, however, the Office of the Ombudsman rendered a decision dismissing him from service. Said decision was reversed on appeal, hence, the present case. HELD: Basic is the rule that, in administrative cases, the quantum of evidence necessary to find an individual administratively liable is substantial evidence. Section 5, Rule 133 of the Rules of Court is explicit, to wit: Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Substantial evidence does not necessarily mean preponderant proof as required in ordinary civil cases, but such kind of relevant evidence as a reasonable mind might accept as adequate to support a conclusion or evidence commonly accepted by reasonably prudent men in the conduct of their affairs. In the present case, the evidence upon which respondent’s administrative liability would be anchored lacked that degree of certainty required in administrative cases, because the entries found in the two separate audit conducted by the COA yielded conflicting results. Evidence of shortage is imperative in order for the respondent to be held liable. In the case at bar, the evidence could not be relied upon. The second audit report necessarily puts into question the reliability of the initial audit findings. Whether the zero balance as appearing in the second audit report was correct or inadvertently indicated, the credibility and accuracy of the two audit reports were already tarnished. FINANCIAL BUILDING CORPORATION v. RUDLIN INTERNATIONAL CORPORATION G.R. No. 164186 & 164347, October 4, 2010 (VILLARAMA, JR., J.) Rudlin International Corporation (Rudlin) invited proposals from several contractors to undertake the construction of a three-storey school building and other appurtenances and the contract was eventually awarded to Financial Building Corporation (FBC). The project was completed, however, the balance of the adjusted contract price was not paid. FBC instituted a complaint against Rudlin and while the RTC dismissed said complaint, the CA held that FBC did not substantiate its claim against Rudlin. ISSUE: Is evidence of a prior or contemporaneous verbal agreement admissible to vary, contradict or defeat the operation of a valid contract? (No) HELD:On the issue of the correct total contract price, we hold that Rudlin failed to substantiate its claim that the contract price stated in the Construction Agreement was not the true contract price because it had an understanding with FBC’s Jaime B. Lo that they would decrease said amount to a mutually acceptable amount. Rudlin argues that under Section 9, Rule 130, a party may present evidence to modify, explain or add to the terms of the written agreement if it is put in issue in the pleading. Assuming as true Rudlin’s claim that the contract failed to accurately reflect an intent of the parties to fix the total contract price, Rudlin failed to avail of its right to seek the reformation of the instrument to the end that such true intention may be expressed. Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract. Section 9 of Rule 130 of the Rules of Court states: SEC. 9. Evidence of written agreements.—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.

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However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors-in-interest after the execution of the written agreement. The term “agreement” includes wills. Rudlin cannot invoke the exception under (a) or (b) of the above provision. Such exception obtains only where “the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. Under the fourth exception, however, Rudlin’s evidence is admissible to show the existence of such other terms agreed to by the parties after the execution of the contract. But apart from the Bar Chart and Cash Flow Chart prepared by FBC, and the testimony of Rodolfo J. Lagera, no competent evidence was adduced by Rudlin to prove that the amount stated in the contract was the actual decreased amount that FBC and Rudlin found mutually acceptable. As to the affidavits executed by Architect Quezon and his associate Roberto R. Antonio, the same do not serve as competent proof of the purported actual contract price as they did not testify thereon. Likewise, there is nothing in the various letters sent by Rudlin to FBC while construction was in progress and even subsequent to the execution of the said LetterAgreement indicating that Rudlin corrected the contract price which FBC had repeatedly mentioned in its letters and documents. THE HEIRS OF ROMANA SAVES, et al. v. HEIRS OF ECOLASTICO SAVES, et al. G.R. No. 152866, October 6, 2010 (LEONARDO-DE CASTRO, J.) Several persons filed their respective claims before the Court of First for the titling of the respective lots they occupy, among them were Escolastico Saves and Romana Saves. A Decision was rendered by the court, adjudicating several parcels of land to different claimants. Subsequently, the heirs of Escolastico and Romana sold said property to Gaudencia Valencia. A case for Reconveyance, Partition, and Damages was filed before the RTC on the ground that Valencia fraudulently acquired the properties. RTC declared the sale null and void while the CA reversed said decision. ISSUE: Can the CA consider evidence not formally offered before the trial court? HELD:A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE documents not previously scrutinized by the trial court. However, in People v. Napat-a, citing People v. Mate, we relaxed the foregoing rule and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present, viz: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case.With regard to a document entitled “Motion for the Issuance of Transfer Certificate of Title” filed by Valencia in the same trial court that led to the issuance of his Title, the records would show that it is the same document that the heirs’ witness Fruto Rosario identified in his testimony and marked as Exhibit “I”. That only the heirs were able to formally offer the said motion as Exhibit “I” most certainly does not mean that it can only be considered by the courts for the evidentiary purpose. It is well within the discretion of the courts to determine whether an exhibit indeed serves the probative purpose for which it is offered. It is likewise worth emphasizing that under the Revised Rules on Evidence, an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof – such admission may be contradicted only by showing that it is made through palpable mistake or that no such admission was made. SILKAIR (SINGAPORE) PTE., LTD. v. COMMISSIONER OF INTERNAL REVENUE G.R. No. 184398, February 25, 2010 (LEONARDO-DE CASTRO, J.) Silkair Singapore Pte., Ltd. (corporation) applied for a refund of excise taxes erroneously paid by it on its purchase of aviation jet fuel from Petron. Since no action was taken by the CIR, the corporation filed a petition for review before the CTA which held that its purchase is exempt from excise tax. The CTA, however, held that the corporation is not entitled to a refund for the corporation’s failure to present proof that it was authorized to do business in the Philippines due to the non-admission of some of its exhibits for being mere photocopies of original documents. ISSUE: Was Silkair able to prove its authority to do business in the Philippines? (No) HELD:Petitioner’s assertion that the CTA may take judicial notice of its SEC Registration, previously offered and admitted in evidence in similar cases before the CTA, is untenable. Evidence already presented and admitted by the court in a previous case cannot be adopted in a separate case pending before the same court without the same being offered and identified anew. A court is not compelled to take judicial notice of pieces of evidence offered and admitted in a previous case unless the same are properly offered or have accordingly complied with the requirements on the rules of evidence. It is an elementary rule in law that documents shall not be admissible in evidence unless and until the original copies itself are offered or presented for verification in cases where mere copies are offered, save for the exceptions provided for by law. Silkair thus cannot hide behind the veil of judicial notice so as to evade its responsibility of properly complying with the rules of evidence. For its failure to compare the subject documents with its originals, the same may not be admitted. Evidently, said

documents cannot be admitted in evidence by the court as the original copies were neither offered nor presented for comparison and verification during the trial. Mere identification of the documents and the markings thereof as exhibits do not confer any evidentiary weight on them as said documents have not been formally offered by petitioner and have been denied admission in evidence by the CTA. Neither could it be said that petitioner’s SEC Registration and operating permits from the CAB are documents which are of public knowledge, capable of unquestionable demonstration, or ought to be known to the judges because of their judicial functions, in order to allow the CTA to take discretionary judicial notice of the said documents. HEIRS OF JOSE LIM v. JULIET VILLA LIM G.R. No. 172690, March 3, 2010 (NACHURA, J.) The heirs of the late Jose Lim filed a Complaint for Partition, Accounting and Damages against Juliet Villa Lim (Juliet), widow of the late Elfredo Lim (Elfredo), alleging that their predecessor formed a partnership with his friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto) to engage in a trucking business. That the partners purchased a truck to be used in the hauling and transporting of lumber and that Jose managed the operations of this trucking business until his death. The business was continued and the shares in the partnership profits and income that formed part of the estate of Jose were held in trust by one of the Elfredo, with the other heirs’ authority for Elfledo to use, purchase or acquire properties using said funds. The heirs contend that Elfredo served as a driver in the business but was never an investor or a partner of the business. When the partnership ceased operations, nine trucks were registered under Elfredo’s name. The heirs further claims that it was through the profits derived from the partnership that Elfredo was able to acquire real properties and 5 motor vehicles. When Elfredo passed away, the heirs claimed that they are co-owners of the properties, hence, the present case. Juliet claims that Elfredo was a partner per testimony of Cresencia (Jose’s wife), Elfredo contributed to the capital of the partnership, hence, an informal partnership was formed. That Other than the trucking business, Elfledo, together with respondent, engaged in other business ventures. Thus, they were able to buy real properties and to put up their own car assembly and repair business. Juliet further stated that when Jose died, he left no properties that Elfredo could have held in trust. The heirs argue that according to the testimony of Jimmy, the sole surviving partner, Elfledo was not a partner; and that he and Norberto entered into a partnership with Jose. Thus, the CA erred in not giving that testimony greater weight than that of Cresencia, who was merely the spouse of Jose and not a party to the partnership. ISSUE:Can the testimony of one of the heirs be given greater weight than that by a former partner on the issue of the identity of the other partners in the partnership? (No) HELD: Undoubtedly, the best evidence would have been the contract of partnership or the articles of partnership. Unfortunately, there is none in this case, because the alleged partnership was never formally organized.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Nonetheless, we are asked to determine who between Jose and Elfledo was the “partner” in the trucking business. A careful review of the records persuades us to affirm the CA decision. The evidence presented by the heirs falls short of the quantum of proof required to establish that: (1) Jose was the partner and not Elfledo; and (2) all the properties acquired by Elfledo and respondent form part of the estate of Jose, having been derived from the alleged partnership. The heirs heavily rely on Jimmy's testimony. But that testimony is just one piece of evidence against Juliet. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. "Preponderance of evidence" is the weight, credit, and value of the aggregate evidence on either side and is usually considered synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." "Preponderance of evidence" is a phrase that, in the last analysis, means probability of the truth. It is evidence that is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Rule 133, Section 1 of the Rules of Court provides the guidelines in determining preponderance of evidence, thus: SECTION I. Preponderance of evidence, how determined. In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Applying the legal provision to the facts of this case, the following circumstances tend to prove that Elfledo was himself the partner of Jimmy and Norberto: 1) Cresencia testified that Jose gave Elfledo money, as share in the partnership, on a date that coincided with the payment of the initial capital in the partnership; (2) Elfledo ran the affairs of the partnership, wielding absolute control, power and authority, without any intervention or opposition whatsoever from any of the heirs; (3) all of the properties, particularly the nine trucks of the partnership, were registered in the name of Elfledo; (4) Jimmy testified that Elfledo did not receive wages or salaries from the partnership, indicating that what he actually received were shares of the profits of the business; and (5) none of the heirs, the alleged partner, demanded periodic accounting from Elfledo during his lifetime. As repeatedly stressed in Heirs of Tan Eng Kee v. CA, a demand for periodic accounting is evidence of a partnership. Furthermore, the heirs failed to adduce any evidence to show that the real and personal properties acquired and registered in the names of Elfledo and Juliet formed part of the estate of Jose, having been derived from Jose's alleged partnership with Jimmy and Norberto. They failed to refute Juliet's claim that Elfledo and Juliet were engaged in other businesses. Thus, we apply the basic rule

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of evidence that between documentary and oral evidence, the former carries more weight. PEOPLE OF THE PHILIPPINES v. ALBERT SANCHEZ y GALERA G.R. No. 188610, June 29, 2010 (VELASCO, JR., J.) Albert Sanchez y Galera stealthily entered the residence of the De Leon family where he stabbed and succeeded in killing some of the family members. The records established that when the mother discovered that her son was bathed in blood the son uttered that, "Mama, si Kuya Albert sinaksak ako". The RTC convicted Sanchez of two counts of murder and two counts of frustrated murder. ISSUE:Is the son’s final words to his mother admissible as evidence? HELD: What Jufer uttered just before he expired - "Mama, si Kuya Albert, sinaksak ako"- is admissible in evidence against the appellant pursuant to Section 37, Rule 130 of the Rules of Court. Sec. 37. Dying declaration. — The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. A dying declaration is an evidence of the highest order; it is entitled to the utmost credence on the premise that no one person who knows of his impending death would make a careless and false accusation. At the brink of death, all thoughts of concocting lies disappear. SPOUSES MANUEL and VICTORIA SALIMBANGON v. SPOUSES SANTOS AND ERLINDA TAN G.R. No. 185240, January 20, 2010 (ABAD, J.) Guillermo Ceniza died intestate and his children, including herein petitioner Victoria Salimbangon, executed an extrajudicial declaration of heirs and partition, adjudicating and dividing the land among themselves. To give the interior lots access to the street, the heirs annotated an easement of right of way consisting of a 3meter wide alley across the property. But, realizing that the partition resulted in an unequal division of the property, the heirs modified their agreement by eliminating the easement of right of way and in its place, imposed a 3-meter wide alley, an easement of right of way, that ran exclusively along the southwest boundary of the property. Victoria and her husband constructed a residential house on this lot and built two garages on it. One garage abutted the street while the other used the alley or easement of right of way which was cemented and gated by Victoria. The remaining lots were brought by Spouses Santos and Erlinda Tan who also built improvements on the easement and closed the gate that Victoria built. Unable to use the old right of way, the Victoria lodged a complaint with the City Engineer against the Tans. On the other hand, the Tans filed an action with the RTC against Victoria for the extinguishment of the easement with preliminary injunction. RTC upheld Victoria’s easement of right of way over the property belong to the Tans. The CA reversed said ruling and extinguished the easement based on the testimony of one of the previous owners, Eduardo Ceniza, the true intent of

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE the parties was to establish that easement of right of way for the benefit of the interior lots. ISSUE:Can parole evidence be admitted in an action for extinguishment of easement of right of way? HELD:The parole evidence rule, said the Victoria, precluded the parties from introducing testimony that tended to alter or modify what the parties had agreed on above. But the exclusionary provision of the parole evidence rule admits of exceptions. Section 9, Rule 130 of the Revised Rules on Evidence states: Sec. 9. Evidence of written agreements. - 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. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term “agreement” includes wills. Here, the Tans had put in issue the true intent and agreement of the parties to the partition when they alleged that the easement was actually for both Victoria and Eduardo Ceniza’s benefit. Consequently, with the above averment, the Tans were entitled to introduce evidence to establish the true intent and agreement of the parties although this may depart from what the partition agreement literally provided. At any rate, as the CA said, the Victoria did not object at the hearing to admission of Eduardo Ceniza’s testimony even when this seemed at variance, as far as they were concerned, with the partition agreement among the heirs. Consequently, the Victoria may also be deemed to have waived their right to now question such testimony on appeal. The point is that, obviously, in establishing the new easement of right of way, the heirs intended to abandon the old one. And, with the ownership of the property now consolidated in a common owner, namely, the Tans, then the easement of right of way may be said to have been extinguished by operation of law. ANTONIO LEJANO v. PEOPE OF THE PHILIPPINES G.R. No. 176389, 14 December 2010 (Abad, J.) Alfaro was the NBI’s star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible, and obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their “darling” of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official confirmed this to be a cold fact. Why the trial court and Court of Appeals failed to see this is mystifying.

In 1991, Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Parañaque City. Four years later, the NBI announced that it had solved the crime. It presented starwitness Jessica M. Alfaro, one of its informers, who claimed that she witnesses the crime. She pointed to the accused Hubert Jeffrey P. Webb, Antonio “Tony Boy” Lejano, Artemio “Dong” Ventura, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro’s testimony, on August 10, 1995, the public prosecutors filed information for rape with homicide against Webb, et al. The RTC of Parañaque presided over by Judge Amelita G. Tolentino tried only seven of the accused since Artemio Ventura and Joey Filart remained at large. The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of Webb’s household, police officer Biong’s former girlfriend, and Lauro G. Vizconde, Estrellita’s husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webb’s alibi appeared the strongest since he claimed that he was then in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro’s bad reputation for truth and the incredible nature of her testimony. The trial court found a credible witness in Alfaro. It noted her categorical straightforward, spontaneous and frank testimony, undamaged by grueling cross-examinations. The RTC rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months and one day to twelve years. On appeal, the Court of Appeals affirmed RTC’s decision. In 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA Analysis the semen specimen taken from Carmela’s cadaver, which specimen was then believed still under the safekeeping of NBI. Unfortunately, the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial court record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted the accused Webb to file an urgent motion to acquit on the ground that the government’s failure to preserve such vital evidence has resulted in the denial of his right to due process. ISSUES: 1.

Whether or not Alfaro’s testimony eyewitness is entitled to belief

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

as

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UST GOLDEN NOTES 2011 2.

Whether or not Webb’s pieces of evidence are proven sufficient enough to rebut Alfaro’s testimony

HELD: CA Decision REVERSED and SET ASIDE. Alfaro’s testimony as eyewitness But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. The Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Alfaro was the NBI’s star witness, their badge of excellent investigative work.lavvphil After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaro’s Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case. Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webb’s co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmela’s house, only Webb, Lejano, Ventura, and Alfaro entered the house.

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Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaro’s car, which was parked on the street between Carmela’s house and the next. Some of these men sat on top of the car’s lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webb’s companions out on the street did not figure in a planned gang-rape of Carmela. Two. Ventura, Alfaro’s dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webb’s messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmela’s boyfriend. Alfaro’s trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmela’s house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmela’s house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the master’s bedroom. He had apparently stabbed to death Carmela’s mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look.

possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce?

Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. Webb’s Alibis to Rebut Alfaro’s Testimony Among the accused, it was Webb who presented the strongest alibi. His travel preparations were confirmed by Rajah Tours and the Philippine immigration, confirming that he indeed left for San Francisco, California with his Aunt Gloria on March 9, 1991 on board the United Airlines Flight 808. His passport was stamped and his name was listed on the United Airlines Flight’s Passenger Manifest. Upon reaching US, the US immigration recorded his entry to the country. Moreover, details of his very stay there, including his logs and paychecks when he worked, documents when he purchased a car and his license were presented as additional evidence, and he left for Philippines on October 26, 1992. Supreme Court accused the trial court and the Court of Appeals as having a mind that is made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the faces of a witness squeaking “I saw him do it”. A judge, according to the Court, must keep an open mind, and must guard against slipping into hasty conclusions arising from a desire to quickly finish the job of deciding a case. For positive identification to be credible, two criteria must be met: 1.) the positive identification of the offender must come from a credible witness 2.) the witness’ story of what she personally saw must be believable, not inherently contrived. For alibi to be credible and established on the other hand, it must be positive, clear and documented. It must show that it was physically impossible for him to be at the scene of the crime. Webb was able to establish his alibi’s credibility with his documents. It is impossible for Webb, despite his so called power and connections to fix a foreign airlines’ passenger manifest. Webb’s departure and arrival were authenticated by the Office of the US Attorney General and the State Department. In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 VII. REVISED RULES ON SUMMARY PROCEDURE A. CASES COVERED BY THE RULE Q: In what cases do the Revised Rules on Summary Procedure apply? A: 1.

2.

3.

Civil cases: a. All cases of forcible entry and unlawful detainer, irrespective of amount of damages or unpaid rentals sought to be recovered provided when attorney’s fees are awarded, the same shall not exceed P20,000.00; and b. All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costs (As amended by A.M. No. 02-11-09-SC effective Nov. 5, 2002) Criminal cases: a. Violations of traffic laws, rules and regulations; b. Violations of rental law; c. Violations of municipal or city ordinances; d. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months or a fine not exceeding P1,000.00, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising there from. Provided however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10,000.00; and Violation of bouncing checks law (Sec. 1). B. EFFECT OF FAILURE TO ANSWER

Q: What is the effect of failure of the defendant to answer? A: 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 (Sec 6).

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Note: This is without prejudice to the applicability of Sec. 4, Rule 18 of the Rules of Court, stating that the non-appearance of the party in a pre-trial may be excused if valid cause is shown or a representative authorized in writing appears in his behalf.

C. PRELIMINARY CONFERENCE AND APPEARANCES OF THE PARTIES Q: Is preliminary conference in civil cases mandatory? A: Yes. Not later than 30 days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. Q: What is the effect of the plaintiff’s failure to appear? A: The failure of the plaintiff to appear in the preliminary conference shall be a 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 Sec. 6. Note: All cross-claims shall be dismissed.

Q: What is the effect of the defendant’s failure to appear during the preliminary conference? A: If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Sec. 6. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference (Sec. 7). Q: Is preliminary conference in criminal cases mandatory? A: Yes. Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced in writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused (Sec. 14).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

KATARUNGANG PAMBARANGAY VIII. KATARUNGANG PAMBARANGAY

C. VENUE

A. CASES COVERED

Q: What are the rules on venue under the law on Katarungang Pambarangay?

Q: What is the object of the Katarungang Pambarangay Law?

A: 1.

A: Its object is to effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion (Preamble of P.D. 1508, the former and the first Katarungang Pambarangay Law). (1999 Bar Question)

2.

3. B. SUBJECT MATTER OF AMICABLE SETTLEMENT Q: What is the subject matter for amicable settlement?

4.

A: GR: The Lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes. (Sec. 2)

For disputes between residents of the same barangay, the dispute must be brought for settlement in the said barangay; For disputes between residents of different barangays within the same city or municipality or any of the respondents reside at the election of the complainant; For disputes involving real property or any interest therein shall be brought in the barangay where the real property or larger portion thereof is situated; and For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located.

D. WHEN PARTIES MAY DIRECTLY GO TO COURT XPN: 1. Where one party is the government or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; 4. Offenses where there are no private offended party; 5. Where the dispute involves real properties located in different cities or municipalities unless the parties agree to submit the dispute to amicable settlement by an appropriate lupon; 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, except: a. Where the barangay units adjoin each other; and b. The parties submit their dispute to amicable settlement by an appropriate lupon. 7. Disputes which the President may determine in the interest of justice; and 8. Where one of the parties is a juridical entity.

Q: When may a party directly file an action in court notwithstanding that said action falls within the authority of the lupon ng tagapamayapa? A: A party may directly file an action in court in the following instances: 1. 2.

3.

4. 5. 6. 7.

8. 9.

Where the accused is under police custody or detention; Where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding; Where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; Where the action may otherwise be barred by the statute of limitations; Labor disputes; CARL disputes; Any class of dispute which the President may determine in the interest of justice or upon recommendation of the Secretary of Justice; Disputes involving the traditions of indigenous cultural communities; and Actions to annul judgment upon a compromise.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 E. EXECUTION Q: What is the effect of amicable settlement and arbitration award? A: GR: The amicable settlement and arbitration award shall have force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. XPN: the compromise settlement agreed upon by the parties before the lupon chairman or the pangkat chairman involving court cases which fall under the last paragraph of Sec. 408 shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court (Sec. 416). Q: How is the arbitration award complied with? A: The parties, may, at any stage of the arbitration proceedings, agree in writing that they shall abide by the arbitration award of the lupon chairman or the pangkat chairman. Such agreement to arbitrate may be repudiated within 5 days from the date thereof on the grounds stated in Sec. 418. The arbitration award shall be made after the lapse of the period of repudiation and 10 days thereafter. Q: Within what period shall the arbitration award be enforced? A: It may be enforced by execution by the lupon within 6 months from date of settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court (Sec. 417). F. REPUDIATION Q: What may be the grounds for repudiating the amicable settlement? A: Any party to the dispute may within 10 days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided (Sec. 418).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

RULE OF PROCEDURE FOR SMALL CLAIM CASES IX. RULE OF PROCEDURE FOR SMALL CLAIM CASES (AM No. 08-8-7-SC)

2.

For damages arising from any of the following: a. Fault or negligence; b. Quasi-contracts; and c. Contracts.

3.

The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this rule pursuant to Sec. 417 of the Local Government Code of 1991 (Sec. 4).

Q: What is the “Rule of Procedure for Small Claims Cases”? A: It is a special rule of procedure adopted by the Supreme Court pursuant to its rule-making power under Sec. 5(5), Art. VIII of the 1987 Constitution, to govern small claims cases and is to be piloted in designated first level courts (MTC, MTCC, and MCTC). This rule allows a plaintiff to sue a defendant without the need of a lawyer.

Q: What is the jurisdictional amount for small claims?

A. SCOPE AND APPLICABILITY OF THE RULE Q: What is the scope of this Rule? A: The Rule governs the procedure in actions for money claims before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00), exclusive of interest and costs. Q: In what actions does the rule on small claims apply? (Applicability) A: 1.

2.

3.

Those which are purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money; The civil aspect of criminal actions either filed before the institution of the criminal action or reserved upon the filing of a criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure (Sec. 4); and The enforcement of a barangay amicable settlement or an arbitration award involving money claims covered by the Rule, pursuant to Sec. 417 of the Local Government Code of 1991.

Q: What should the claims or demands consist of? A: The claims or demands may be: 1.

For money owed under any of following: a. Contract of lease; b. Contract of loan; c. Contract of services; d. Contract of sale; or e. Contract of mortgage.

A: The value of the claim prayed for must not exceed one hundred thousand pesos (P100,000.00) exclusive of interest and costs (Sec. 2). B. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE Q: How does one start a small claims case? A: The plaintiff must first accomplish a verified Statement of Claim and certify the information provided, stating that he has not filed any action involving the very same issue in any other court, tribunal or agency through a verification and certification of non-forum shopping. The Statement of Claim must be accompanied by certified duplicate photocopies of all supporting documents. The plaintiff then files the Statement of Claim with its accompanying documents with the office of the clerk of court of the small claims court, personally or through mail, and pays the correct docket and filing fees prescribed under Rule 141 of the Revised Rules of Court (Sec. 5). If one is an indigent, he may apply to the small claims court to qualify as an indigent, and once qualified, he is exempt from payment of such fees (Sec. 8). Note: In no case shall a party, even if declared an indigent, be exempt from the payment of P1,000.00 fee for service of summons and processes in civil cases (Sec. 8).

Plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed 100,000 (Sec. 6).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: When should the defendant file a response? A: The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified response within a non-extendible period of ten (10) days from receipt of summons. The response shall be accompanied by certified photocopies of documents, as well as affidavits of witnesses and other evidence in support thereof. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Response, unless good cause is shown for the admission of additional evidence (Sec. 11).

raised in the same case. Otherwise, it will be barred (Sec.13). C. PROHIBITED PLEADINGS AND MOTIONS Q: What are the prohibited pleadings, motions and petitions? A: 1.

Motion to dismiss the complaint except on the ground of lack of jurisdiction; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits, or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; and 12. Interventions (Sec. 14).

Q: Instead of filing a response, can a defendant file a motion to dismiss the claim? A: No. The filing of a motion to dismiss instead of a response is prohibited, except on ground of lack of jurisdiction. Q: What is the effect if the defendant failed to file a response within the required period? A: The court by itself shall render judgment as may be warranted by the facts alleged in the Statement of Claims limited to what is prayed for. The court however, may, in its discretion reduce the amount of damages for being excessive or unconscionable (Sec. 12).

D. APPEARANCES Q: Who are required to appear at the hearing?

Q: Are counterclaims allowed under this rule? A: Yes. If at the time the action is commenced, the defendant in his Response may file as counterclaim a claim against the plaintiff that: 1. 2.

3. 4.

is within the coverage of this Rule, exclusive of interest and costs; arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; does not require for its adjudication the joinder of third parties; and is not a subject of another pending action (Sec. 13).

Note: The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid.

A: The parties shall appear at the hearing personally or through a representative they may authorize under a Special Power of Attorney to enter into an amicable settlement, to submit to Judicial Dispute Resolution (JDR) and to enter into stipulations or admissions of facts and of documentary exhibits (Sec. 16). Note: Appearance through a representative must be for a valid cause. The representative of an individualparty must not be a lawyer, and must be related to or next-of-kin of the individual-party. Juridical entities shall not be represented by a lawyer in any capacity (Sec. 16).

Q: What is the effect of non-appearance of a party? A: 1. 2.

Q: What happens when a defendant fails to include a counterclaim in his/her Response?

If the plaintiff does not appear, the claim shall be dismissed without prejudice. If the defendant does not appear, the effect will be the same as failure to file a Response.

A: If the counterclaim is compulsory, it must be

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

RULE OF PROCEDURE FOR SMALL CLAIM CASES 3.

If both parties do not appear, the claim and counterclaim shall be dismissed with prejudice (Sec. 18).

Note: This shall not apply where one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears at the hearing.

Q: Are lawyers allowed at the hearing? A: No, lawyers are not allowed to appear at the hearing unless they are the plaintiff or the defendant. However, since the process is still a legal process, the parties and their authorized representatives can still consult with a lawyer to assist them to prepare for the hearing or for other matters outside the hearing (Sec. 17).

A: The rule does not preclude a party from filing a petition for certiorari under Rule 65 when there is grave abuse of discretion amounting to lack or excess of jurisdiction in relation to a judgment in a small claims action (such a petition is prohibited with regard to interlocutory orders). Further, the aggrieved party can also file an action for annulment of judgment when the requirements under the Rules of Civil Procedure are complied with.

Q: Who is allowed to assist a party who cannot properly present his claim or defense? A: The court, in its discretion, may allow another individual who is not a lawyer to assist the party (Sec. 17). E. HEARING; DUTY OF THE JUDGE Q: When is postponement of a hearing allowed? A: It may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only 1 postponement (Sec. 19). Q: What is the duty of the Judge? A: At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases. (Sec. 20) F. FINALITY OF JUDGMENT Q: Is an appeal of a decision allowed? A: No. A decision in small claims cases is final and unappealable (Sec. 23). The declaration that the decision is final and unappealable is in line with the nature of small claims which is designed to preclude unmeritorious appeals that result in long drawn litigation for cases of this nature, pursuant to the Supreme Court’s constitutional mandate to enact rules of procedure. Q: What then is the remedy of a party when the decision is final and unappealable?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 X. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (AM No. 09-6-78-SC)

(t) (u)

A. SCOPE AND APPLICABILITY OF THE RULE Q: What is the scope of the Rule on Environmental Cases? A: These Rules shall govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following: (a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; (b) P.D. No. 705, Revised Forestry Code; (c) P.D. No. 856, Sanitation Code; (d) P.D. No. 979, Marine Pollution Decree; (e) P.D. No. 1067, Water Code; (f) P.D. No. 1151, Philippine Environmental Policy of 1977; (g) P.D. No. 1433, Plant Quarantine Law of 1978; (h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; (j) R.A. No. 4850, Laguna Lake Development Authority Act; (k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (l) R.A. No. 7076, People’s Small-Scale Mining Act; (m) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act; (o) R.A. No. 7942, Philippine Mining Act; (p) R.A. No. 8371, Indigenous Peoples Rights Act; (q) R.A. No. 8550, Philippine Fisheries Code; (r) R.A. No. 8749, Clean Air Act; (s) R.A. No. 9003, Ecological Solid Waste Management Act;

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(v) (w) (x) (y)

R.A. No. 9072, National Caves and Cave Resource Management Act; R.A. No. 9147, Wildlife Conservation and Protection Act; R.A. No. 9175, Chainsaw Act; R.A. No. 9275, Clean Water Act; R.A. No. 9483, Oil Spill Compensation Act of 2007; and Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. (Sec. 2, Rule 1) B. CIVIL PROCEDURE

1. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Q: Can a court issue a writ of preliminary injunction or temporary restraining order preclude the government from enforcing environmental laws or prevent violations thereof? A: As a general rule, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. The Supreme Court is the only court which can issue such orders. (Sec. 10, Rule 2) Q: Can a court issue a writ of preliminary injunction or temporary restraining order preclude the government from enforcing environmental laws or prevent violations thereof? A: As a general rule, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES The Supreme Court is the only court which can issue such orders. (Sec. 10, Rule 2) 2. PRE-TRIAL CONFERENCE; CONSENT DECREE

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.

Q: When may a judge issue a consent decree? A: The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology. (Sec. 5, Rule 3) Note: Evidence not presented during the pre-trial, except newly discovered evidence, shall be deemed waived. (Section 5, Rule3)

Q: What is the duty of the judge during the pretrial conference?

NOTE: The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant. (Sec. 8, Rule 2)

Q: Is the applicant required to post a bond? A: No. The applicant shall be exempted from the posting of a bond for the issuance of a TEPO. (Sec. 8, Rule 2) 5. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN’S SUIT

A: 1. Put the parties and their counseld under oath and they shall remain under oath in all pre-trial conferences. 2. Exert best efforts to persuade parties to arrive at an amicable settlement. 3. Issue a consent decree 3. PROHIBITED PLEADINGS AND MOTIONS Q: What are the prohibited pleadings and motions under this Rule’s Civil Procedure? A: 1. 2. 3.

4. 5. 6.

Motion to dismiss the complaint; Motion for a bill of particulars; Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days; Motion to declare the defendant in default; Reply and rejoinder; and Third party complaint. (Sec. 2, Rule 2)

4. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) Q: When should a Temporary Environmental Protection order be issued? A: 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 seventy-two (72) hours from date of the

Q: What are the reliefs in a citizen suit? A: If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorney’s fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court. (Sec. 1, Rule 5) Q: Can a judgment be stayed by appeal? A: As a general rule, no. Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court. (Sec. 2, Rule 5) Q: When is there a need to refer to a commissioner? A; The court may motu proprio, or upon motion of the prevailing party, order that the enforcement of the judgment or order be referred to a commissioner to be appointed by the court. The commissioner shall file with the court written progress reports on a quarterly basis or more frequently when necessary. (Sec. 4, Rule 5) Q: When shall the judgment be deemed executed? A: The process of execution shall terminate upon a sufficient showing that the decision or order has been implemented to the satisfaction of the court

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 in accordance with Section 14, Rule 39 of the Rules of Court. (Sec. 5, Rule 5) 6. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS Q: When may the court convert a TEPO to a permanent EPO? When may the court issue a writ of continuing mandamus? A: In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied. Note: The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment. (Sec. 3, Rule 5)

7. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION Q: What is a Strategic Lawsuit Against Public Participation (SLAPP)? A: It is a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. (Sec. 1, Rule 6) Q: Can the defendant raise SLAPP as a legal defense? A: Yes, the defendant may file an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorney’s fees and costs of suit. (Sec. 1, Rule 6) NOTE: The plaintiff has 5 days (non-extendible) from receipt of notice that an answer has been filed to refute such defense. The court will then set a hearing after issuance of the order to file an opposition within fifteen (15) days from filing of the comment or the lapse of the period. (Sec. 1, Rule 6)

A: It is summary. The parties must submit all available evidence in support of their respective positions. (Sec. 3, Rule 6) Q: What is the quantum of proof required? A: The party seeking the dismissal of the case must prove by substantial evidence that his acts for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim. (Sec. 3, Rule 6) Q: How many days does the court have to resolve the issue? A: Within 30 days, the court shall resolve the question of SLAPP. (Sec. 3, Rule 6) Q: What is the effect of the dismissal of the action? A: If the court dismisses the action, the court may award damages, attorney’s fees and costs of suit under a counterclaim if such has been filed. The dismissal shall be with prejudice. (Sec 4) Q: What happens to the evidenced adduced during the summary hearing on the defense of SLAPP in case the court rejects such defense? A: It shall be treated as evidence of the parties on the merits of the case. (Sec. 4) Q: Can SLAPP be raised as a defense in criminal cases? A: Yes. The accused may file a motion to dismiss based on SLAPP upon the filing of an information in court and before arraignment. (Sec. 1, Rule 19) Q: When may a court grant the motion of the accused? A: The court shall grant the motion if the accused establishes in the summary hearing that the criminal case has been filed with intent to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. (Sec. 3, Rule 19)

Q: What is the nature of the hearing on the defense of a SLAPP?

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES Q: What if the court denies the motion? A: The court shall immediately proceed with the arraignment of the accused. (Sec. 3, Rule 19) C. SPECIAL PROCEEDINGS

Note: witnesses having personal knowledge of the violation or threatened violation of environmental law. (Sec. 12 (a), Rule 7)

1. WRIT OF KALIKASAN

Q: What does the ocular inspection order contain?

Q: What is the Writ of Kalikasan? A: It is a special 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. (Sec. 1, Rule 7) 2. PROHIBITED PLEADINGS AND MOTIONS Q: What are the prohibited pleadings and motions? A: 1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; and Motion to declare respondent in default. (Sec. 9, Rule 7) 3. DISCOVERY MEASURES

Q: What are the interim reliefs available to the petitioner upon verified motion? A: 1. 2.

cities or provinces. It shall state in detail the place or places to be inspected.

Ocular inspection; or Production or inspection of documents or things. (Sec. 12, Rule 7)

Q: How is an ocular inspection order granted? A: The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more

A: The 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. (Sec. 12(a), Rule 7) Q: What must the motion asking for the issuance of a production order or inspection of documents A: The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Q: What must the production order state? A: The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties. Note: After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. (Sec. 12(b), Rule 7)

4. WRIT OF CONTINUING MANDAMUS Q: When may an aggrieved party file a verified petition for the issuance of a writ of continuing mandamus? A: 1.

When any agency or instrumentality of the government or officer thereof to perform such actswho unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right. When there is no other plain, speedy and adequate remedy in the ordinary course of law. (Sec. 1, Rule 8)

Q: What should the verified petition contain? A: 1. 2. 3.

4. 5.

Allegation of facts Specific allegation that it concerns an environmental law, rule or regulation Prayer that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied Prayer for damages sustained due to malicious neglect to perform legal duties Sworn certification of non-forum shopping.

Note: Supporting documents mush be attached. (Sec. 1, Rule 8)

Q: Where should the petition be filed? A: The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court. (Section 2, Rule 8) Q: Are docket fees required to be paid? A: No, the petitioner is exempt from payment of docket fees. (Sec. 3, Rule 8) Q: What does the court do if the petition is sufficient in form and substance? A: The court shall issue the writ and require the respondent to comment on the petition within 10 days from receipt of a copy thereof. (Sec. 4, Rule 8)

2.

Grant a TEPO for the preservation of the rights of the parties pending such proceedings. (Sec. 5, Rule 8)

Q: What is the nature of the hearing? A: It is summary in nature. The court, after the comment is filed or the time for the filing thereof has expired, shall require the parties to submit memoranda. (Sec. 6, Rule 8) Q: When should the petition be resolved? A: The petition shall be resolved without delay within sixty (60) days from the date of the submission of the petition for resolution. (Sec. 6, Rule 8) Q: Can the court still grant the privilege of the writ of continuing mandamus? A: Yes, 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. (Sec. 7, Rule 8) Q: What shall the court do to ensure compliance with the judgment? A: 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. (Sec. 7, Rule 8) Q: Can the petitioner intervene even after promulgation of judgment? A: Yes, the petitioner may submit its comments or observations on the execution of the judgment. (Sec. 7, Rule 8)

Q: How shall the order to comment be served? A: The order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. (Sec. 4, Rule 8)

Q: What must the respondent do to evidence compliance with the judgment? A: Submit periodic reports detailing such compliance. It shall be contained in partial returns of the writ. (Sec. 8, Rule 8)

Q: How may the court expedite the proceedings? Q: When must a final return of the writ be made to the court?

A: 1.

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Issue such orders to expedite the proceedings; and

A: Upon full satisfaction of judgment. (Sec. 8, Rule 8)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES A: Note: If the court finds that judgment has been fully implemented, the satisfaction of judgment shall be entered in the court docket. (Sec. 8, Rule 8)

1.

D. CRIMINAL PROCEDURE

2.

1. WHO MAY FILE Q: Who may file a criminal complaint under this Rule? A: Any offended party, peace officer or any public officer charged with the enforcement of an environmental law. (Sec. 1, Rule 9) 2. INSTITUTION OF CRIMINAL AND CRIMINAL ACTION Q: Can the complainant institute a civil action for recovery of damages separately from the criminal action? A: Yes. 1.

2.

Complainant can institute civil action for recovery of damages before the criminal action. Complainant can reserve right to separately institute the civil action from the criminal action.

Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws. (Sec. 1, Rule 11) 4. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS Q: What procedure takes place in the absence of applicable laws or rules promulgated by the concerned government agency? A: 1.

NOTE: Complainant may waive this right. (Sec 1, Rule 10)

Q: When should the reservation be made?

2.

A: During arraignment except when the civil action has been instituted prior to the criminal action. (Sec 1, Rule 10) Q: To whom are the damages awarded? A: The private offended party. If there is none, the damages less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. (Sec. 1, Rule 10)

3.

Q: What is the purpose of the award for damages? A: It shall be used for the restoration and rehabilitation of the environment adversely affected. (Sec. 1, Rule 10)

4.

3. ARREST WITHOUT WARRANT, WHEN VALID Q: When is an arrest without a warrant lawful?

When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.

5.

The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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6.

paraphernalia, tools or instruments of the crime were seized. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment. (Sec. 2, Rule 12)

6. ARRAIGNMENT AND PLEA Q: When shall the court set the arraignment of the accused? A: Within 15 days from the time it acquires jurisdiction over the accused. (Sec. 1, Rule 15)

5. BAIL Q: Where must bail be filed? A: It is filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases. (Sec. 1, Rule 14) Q: What must the court do before granting the bail application? A: The judge must read the information to the accused in a language known to and understood by the accused. (Sec. 2, Rule 14) Q: What are the contents of the written undertaking which the accused must sign? A: 1.

2. 3.

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To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; To appear whenever required by the court where the case is pending; and To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia. (Sec. 2, Rule 14)

NOTE: Notice that plea bargaining will be entertained on the date of arraignment must be sent to the public prosecutor, the offended party and the government agency concerned.

Q: What is the duty of the court when the prosecution and offended party or concerned government agency agree to the plea offered by the accused? A: 1. 2. 3.

Issue an order which contains the pleabargaining arrived at; Proceed to receive evidence on the civil aspect of the case, if any; and Render and promulgate judgment of conviction, including the civil liability for damages. (Sec. 2, Rule 15) 7. PRE-TRIAL

Q: When should the pre-trial conference take place? A: It shall take place within 30 days from arraignment. The court may also refer the case to the branch clerk of court for preliminary conference at least 3 days before the pre-trial conference. (Sec. 1, Rule 16) Q: What are the purposes of the preliminary conference? A: 1. 2. 3. 4.

5. 6.

To assist the parties in reaching a settlement of the civil aspect of the case; To mark the documents to be presented as exhibits; To attach copies thereof to the records after comparison with the originals; To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits; To consider such other matters as may aid in the prompt disposition of the case; To record the proceedings during the preliminary conference in the Minutes of Preliminary Conference to be signed by the parties and counsel;

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES 7.

8.

To mark the affidavits of witnesses which shall be in question and answer form and shall constitute the direct examination of the witnesses; and To attach the Minutes and marked exhibits to the case record before the pretrial proper.

Note: The parties or their counsel must submit to the branch clerk of court the names, addresses and contact numbers of the affiants. (Sec. 2, Rule 16)

Q: Can an agreement or admission made or entered during the pre-trial conference not reduced into writing and signed by the accused and counsel be used against the accused? A: No. (Sec. 5, Rule 16) Note: The agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be approved by the court.

Q: Should the proceedings be recorded? Q: What is the duty of the court during pre-trial? A: 1. 2.

3.

4. 5.

6.

7.

Place the parties and their counsels under oath; Adopt the minutes of the preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents, and list object and testimonial evidence; Scrutinize the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation together with other documents identified and marked as exhibits to determine further admissions of facts as to: i. The court’s territorial jurisdiction relative to the offense(s) charged; ii. Qualification of expert witnesses; and iii. Amount of damages; Define factual and legal issues; Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision; Require the parties to submit to the branch clerk of court the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and Consider modification of order of trial if the accused admits the charge but interposes a lawful defense. (Sec. 13, Rule 16)

Q: To whom should the questions be directed? A: The court. (Sec 14, Rule 16)

A: All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties or their counsels. (Sec. 6, Rule 16) Q: What does the pre-trial order contain? A: Within 10 days after termination of the pre-trial, the court shall issue a pre-trial order containing: 1. 2. 3. 4. 5. 6.

The actions taken during the pre-trial conference; The facts stipulated; The admissions made; Evidence marked; Number of witnesses to be presented; and Schedule of trial. (Sec. 7, Rule 16)

Note: The order shall bind the parties and control the course of action during the trial.

8. SUBSIDIARY LIABILITIES Q: When may subsidiary liability be recovered? A: Under Art. 102 and 103 of the RPC, liability may be enforced the person or corporation subsidiarily liable upon motion of the person entitled to recover such award in case of conviction of the acused. (Sec 1, Rule 18) E. EVIDENCE 1. PRECAUTIONARY PRINCIPLE Q: What is the precautionary principle? A: The court in upholding the constitutional right of the people to a balanced and healthful ecology shall give the evidence presented the benefit of the doubt even when there is a lack of full scientific certainty in establishing a causal link between human activity and the environmental effect. (Sec. 1, Rule 20)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What are the factors that the courts may consider in applying the precautionary principle? A: 1. 2. 3.

Threats to human life or health; Inequity to present or future generations; or Prejudice to the environment without legal consideration of the environmental rights of those affected. (Sec. 2, Rule 20) 2. DOCUMENTARY EVIDENCE

Q: When are photographs, videos and other similar evidence admissible under this Rule? A: Photographs, videos and similar evidence of events, acts, transactions of wildlife, wildlife byproducts or derivatives, forest products or mineral resources subject of a case shall be admissible when authenticated by the person who took the same, by some other person present when said evidence was taken, or by any other person competent to testify on the accuracy thereof. (Sec. 1, Rule 21) Q: Are entries in official records prima facie evidence of the facts stated therein? A: Yes. (Sec 2, Rule 21)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES