2014 Rem Law Quick Reviewer

PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

CIVIL PROCEDURE A. Parts of the Pleading a. Caption b. Body c. Signature and Address d. Verification and Certification against Non-forum Shopping FORUM SHOPPING – consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. Test to determine the presence of forum-shopping: Whether in the two (or more) cases pending, there is identity of (a) parties, (b) rights or causes of action, and (c) relief sought. B. Manner of Making Allegations 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. a. Conditions Precedent- Pleading must state conditions precedent to the cause of action, e.g. failure to compromise or non-compliance with conciliation process at the barangay level. b. Fraud, Mistake and Condition of Mind- Fraud or mistake must be stated with particularity while malice or intent must be averred generally. c. Actionable Document- Written instrument upon which the action or defense is based; main object of the action. (e.g. Promissory note, deed of mortgage, written contract) d. Non-Actionable Document- It is some other extraneous document which is not the main object of the action. (e.g. Demand letter) e. How to Contest an Actionable Document 1. By specific denial under oath; and 2. By setting forth what is claimed to be the facts. C. Specific Denial a. Three Ways of making specific denial

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

1. By specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial (GENERAL DENIAL); 2. Part admission and part denial (PARTIAL DENIAL); and 3. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading (DENIAL BY DISAVOWAL OF KNOWLEDGE) b. Negative Pregnant 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 pregnant with an admission of the substantial facts in the pleading responded to. c. Allegations not Specifically Denied deemed Admitted GENERAL RULE: Allegations NOT specifically denied are deemed admitted. EXCEPTIONS: 1. Allegations as to the amount of unliquidated damages; 2. Allegations immaterial as to the cause of action; and 3. Conclusion of law. D. Effect of Failure to Plead GENERAL RULE: Defenses and objections that are not pleaded in a MOTION TO DISMISS or in the answer are deemed waived. EXCEPTIONS (not waived even if not raised): (a) Lack of jurisdiction over the subject matte (b) Litis pendentia (c) Res judicata (d) Prescription of the action Amended Answer vs. Supplemental Answer An AMENDED ANSWER is proper if the counterclaim or cross claim already existed at the time the original answer was filed, but due to oversight, inadvertence, or excusable neglect, it was not set up. A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-claim matures or is acquired after the answer is filed E. Default a. Effect of Order of Default While the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings. He may still be called on as a witness, in behalf of the non-defaulting defendants b. Remedies of a party declared in default 1. Before the rendition of judgment; (a) file a motion to dismiss under oath to set aside the order of default on the grounds of fraud, accident, mistake or excusable negligence and that

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

he has a meritorious defense (Sec. 3[b] of Rule 9 ); and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of jurisdiction ( Sec. 1 of Rule 65 ); or (b) file a petition for certiorari if he has been illegally declared in default e.g. during the pendency of his motion to dismiss or before the expiration of the time to answer. (Matute v. CA, 26 SCRA 768; Acosta-Ofalia v. Sundial, 85 SCRA 412 ). 2. After judgment but before its finality; (a.) file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence or; (b.) file a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law ( Sec. 2 of Rule 37); and thereafter, if the motion is denied, appeal is available under Rules 40 or 41, whichever is applicable. 3. After finality of judgment There are three ways to assail the judgment, which are: (a) a petition for relied under Rule 38 on the grounds of fraud, accident, mistake or excusable negligence; (b) annulment of judgment under Rule 47 for extrinsic fraud or lack of jurisdiction; (c) certiorari if the judgment is void on its face or by the judicial record. F. Amended Pleading vs. Supplemental Pleading AMENDED PLEADING Refers to facts existing at the time of the commencement of the action. Take place of the original pleading Can be made as a matter of right as when no responsive pleading has yet been filed.

SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. Taken together with the original pleading Always done with leave of court

G. When to File Responsive Pleading ANSWER TO THE COMPLAINT - Within 15 days after service of summons, UNLESS a different period is fixed by the court; ANSWER OF A DEFENDANT FOREIGN PRIVATE JURIDICAL ENTITY In case the defendant is a foreign private juridical entity; a.) If it has a resident agent – within 15 days after service of summons to him;

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

b.) If it has no resident agent, but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer; c.) If it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation within 30 days after receipt of summons by the home office of the foreign private entity. • In case of service of summons by publication – within the time specified in the order granting leave to serve summons by publication, which shall NOT be less than 60 days after notice (Rule 14, Section 15); and • In case of a non-resident defendant on whom extraterritorial service of summons is made –at least 60 days. • The court may extend the time to file the pleadings but may not shorten them. ANSWER TO AMENDED PLEADINGS If the filing of an amended complaint is a MATTER OF RIGHT — within 15 days from service of amended complaint. If the filing of an amended complaint is NOT A MATTER OF RIGHT — within 10 days counted from notice of the court order admitting the same. ANSWER TO COUNTERCLAIM OR CROSS-CLAIM A counterclaim or cross-claim must be answered within 10 days from service. ANSWER TO THIRD (FOURTH, ETC.)-PARTY COMPLAINT The third party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer. REPLY A reply may be filed within 10 days from service of the pleading responded to. ANSWER TO SUPPLEMENTAL COMPLAINT Answer to a supplemental complaint must be filed within 10 days from notice of the order admitting the same. H. Bill of Particulars (Effects of motion if denied or granted) BILL OF PARTICULARS – A more definite statement of any matter which is not averred with sufficient definiteness or particularity.

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. (Galeon v. Galen 60 SCRA 234 (1976)) The motion for bill of particulars shall be filed BEFORE responding to a pleading. Hence, it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading. If the pleading is a reply, the motion must be filed within 10 days from service thereof. EFFECTS OF MOTION: If the motion is GRANTED, in whole or in part, the MOVANT can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading. If his motion is DENIED, he will still have such balance of the reglementary period to file his responsive pleading; counted from service of the order denying his motion. NOTE: In either case, he shall NOT have less than 5 days to file his responsive pleading. I. Summons a. Purpose - To acquire jurisdiction over the person of the defendant in a civil case; and b. Modes of Service • Personal service • Substituted service c. Extraterritorial Service and its Requisites REQUISITES: 1. Defendant does NOT RESIDE or is NOT FOUND in the Philippines; 2. The action must be an action IN REM or QUASI IN REM. It either: a. Affects the PERSONAL STATUS of plaintiff; b. Relates to the subject which is property within the Philippines in which defendant has a LIEN or interest; c. Demands a relief which consists wholly or in part in EXCLUDING the defendant from any interest in any property within the Philippines; or d. Property of defendant has been ATTACHED in the Philippines. J. Motion to Dismiss GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS: 1. Those cases where the court may dismiss a case motu proprio (Sec. 1, Rule 9); 2. Upon the plaintiff’s own motion (Sec. 2, Rule 17); or

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on Summary Procedure). a. Grounds 1. No jurisdiction over the person of the defending party; 2. No jurisdiction over the subject matter of the calm; 3. Improper venue; 4. No legal capacity to sue; 5. Litis pendentia; 6. Res judicata; 7. Prescription; 8. Failure to state a cause of action; 9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; 10. Claim is unenforceable under the Statute of Frauds; and 11. Non-compliance with a condition precedent for filing a claim. b. Effects of Dismissal GENERAL RULE: The action or claim may be re-filed. EXCEPTIONS: The action cannot be re-filed if it was dismissed on any of these grounds: 1. Res judicata; 2. Prescription; 3. Extinguishment of the claim or demand; and 4. Unenforceability under the Statue of Frauds. In these instances, the remedy of the plaintiff is APPEAL. K. Dismissal of Actions a. Upon Notice by the Plaintiff GENERAL RULE: Such dismissal is WITHOUT PREJUDICE. EXCEPTIONS: 1.Where the notice of dismissal so provides; or 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction. (TWO-DISMISSAL RULE) b. Upon Motion of the Plaintiff The dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just. Dismissal under this rule is WITHOUT PREJUDICE, ( the complaint can be re-filed) EXCEPT: 1. When otherwise stated in the motion to dismiss; or 2. When stated to be with prejudice in the order of the court. L. Pre-Trial a. Nature and Purpose The court shall consider: 1. The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resolution; 2. The SIMPLIFICATION OF ISSUES;

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

3. The necessity or desirability of AMENDMENTS TO THE PLEADINGS; 4. The possibility of obtaining STIPULATIONS or ADMISSIONS of facts and documents to avoid unnecessary proof; 5. The limitation of the number of WITNESSES; 6. The advisability of a PRELIMINARY REFERENCE of issues to a commissioner; 7. The propiety of RENDERING JUDGMENT on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. The advisability or necessity of SUSPENDING THE PROCEEDINGS; and 9. Such OTHER MATTERS as may aid in the prompt disposition of the case. b. Effect of Non-appearance of plaintiff Cause for the dismissal of the action. This dismissal shall be with prejudice EXCEPT when the court orders otherwise. The dismissal shall have the effect of adjudication on the merits and is thus final. The remedy of the plaintiff is to appeal the order of dismissal. c. Effect of Non-appearance of defendant Cause the plaintiff to present evidence ex-parte and for the court to render judgment on the basis thereof. The order to present evidence exparte is interlocutory and thus not appealable. The defendant may ask for reconsideration and if the denial is with grave abuse of discretion he may file a petition for certiorari. M. Demurrer to Evidence NATURE: There is only a one-sided trial, i.e., it is only the plaintiff who has presented evidence. PURPOSE: To discourage prolonged litigations. a. If motion denied- Movant shall have the right to present his evidence. Denial is INTERLOCUTORY. Sec. 1, Rule 36 (That judgment should state clearly and distinctly the facts and the law on which it is based), will not apply. The denial is NOT appealable. b. If motion granted but reversed on appeal- Movant is deemed to have waived his right to present 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 Order of the court is an ADJUDUCATION ON THE MERITS. Hence, the requirement in Sec. 1, Rule 36 should be complied with. c. Judgment on Demurrer to Evidence- 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.

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

N. Judgment on the Pleadings JUDGMENT ON THE PLEADINGS – A judgment rendered by the court upon motion of the claimant on the ground that an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading. O. Motion for New Trial GROUNDS: MOTION FOR NEW TRIAL 1. Fraud, accident, mistake, or excusable negligence (FAME); 2. Newly discovered evidence P. Motion for Reconsideration Grounds: 1. Damages awarded are excessive 2. Evidence is insufficient to justify the decision or final order 3. Decision is contrary to law Q. Petition for Relief GROUNDS FOR PETITION FOR RELIEF 1. Judgment or final order entered against a party by FAME; or 2. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal • For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party’s evidence. • Uniform procedure for relief from judgments of MTC and RTC R. Writ of Execution - is a judicial writ issued to an officer authorizing him to execute the judgment of the court. Essential Requisites of a Writ of Execution 1. A writ of execution to be valid must conform strictly to the decision or judgment which gives it life; and 2. It CANNOT VARY the terms of the judgment it seeks to enforce S. Appeal a. Three modes of appeal 1. Ordinary Appeal (Rule 40 and 41) a. Notice of Appeal b. Record on Appeal 2. Petition for Review (Rule 42) 3. Appeal by Certiorari (Rule 45) b. When is appeal a matter of right 1. First Appeal is a matter of right EXCEPT: In civil cases, first appeal is not a matter of right of filed with the Supreme Court. 2. In criminal cases, when the RTC imposes death penalty, the Court of Appeals shall automatically review the judgment (Section 3(d) Rule 122). If the Court of Appeals finds that death penalty should be imposed, the CA

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

shall not render judgment but certify and elevate the case to the Supreme Court for review (Section 13(a) Rule 124).

PROVISIONAL REMEDIES A. ATTACHMENT: WHEN APPLICATION FOR ATTACHMENT MAY BE MADE: 1. At the commencement of the action; or 2. At any time before entry of judgment. TWO-FOLD PURPOSE OF ATTACHMENT: 1 .To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment; 2. 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. HOW TO PREVENT THE ATTACHMENT 1.BY DEPOSITING with the court from which the writ was issued an amount equal to the value of the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs; or 2.BY GIVING A COUNTERBOND executed to the applicant, in amount equal to the bond posted by the latter to secure the attachment or in an amount equal to the value of the property to be attached exclusive of costs (Riano, p.55&) REMEDY OF THE THIRD PERSON: 1. File a terceria or third party claim (similar to Sec. 16, Rule 39) 2. File independent action to recover his property; or 3. File a motion for intervention (This is available only before a judgment is rendered, hence, and not allowed under Rule 39 B. INJUNCTIONS PRELIMINARY PROHIBITORY INJUNCTION An order granted at any stage of an action or proceeding prior to judgment or final order, requiring a party or court, agency or person to refrain from a particular act or acts. PRELIMINARY MANDATORY INJUNCTION An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring the performance of a particular act or acts. PROHIBITION 1. Directed against a court, tribunal, or a person exercising judicial, quasi-judicial, or ministerial functions 2. On the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction. 3. Always a main action C. TEMPORARY RESTRAINING ORDER

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

GENERAL RULE: No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. EXCEPTION: When temporary restraining order may be issued ex parte. DURATION OF TEMPORARY RESTRAINING ORDER: 20 days from notice: if great or irreparable injury would result to the applicant before the matter can be heard on notice. 2. 72 hours from issuance (issued ex parte): if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.  extension of the 72-hour TRO 1.

D. RECEIVERSHIP IN WHAT CASES RECEIVER MAY BE APPOINTED: Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals, or by the Supreme Court, or a member thereof, in the following cases: 1.The party applying for the appointment of a receiver has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or materially injured unless a receiver is appointed; 2.In an action by the mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have so stipulated in the contract of mortgage; 3.After judgment, to preserve the property during the pendency of the appeal, or to dispose of it according to the judgment, or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment; 4.In other cases where it appears appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation. E. REPLEVIN Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin. Procedure for the application for Replevin (Requisites): 1. File an APPLICATION at the commencement of the action or at any time before defendant answers. 2. Applicant must give a BOND, executed to the adverse party, which shall be double the value of the property as stated in the affidavit. F. SUPPORT PENDENTE LITE Support Pendente Lite is an amount of support provisionally fixed by the court in favour of the person or persons entitled thereto during the pendency of an

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

action for support. Here the main action is for support and support pendent lite is the provisional remedy.

SPECIAL CIVIL ACTIONS

A. Interpleader Interpleader is a special civil remedy where a person, who has property (personal or real) in his possession or an obligation to perform, either wholly or partially, without claiming any right to either, or who claims no interest in the subject, or whose interest, in whole or in part, is not disputed by others, goes to court and asks that conflicting claimants to the property, or obligation be required to litigate among themselves in order to determine finally who is entitled to the same. B. Declaratory Relief a. Purpose- to ask the court to make a proper interpretation of a written instrument, or a statute, executive order, ordinance, or other governmental regulation. It also adjudicates the legal rights, duties, or status of parties. b. Who files the petition- Any person interested under a deed, will contract, or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation. (Sec.1) c. When to file the petition- Before breach or violation of a right under a deed, will, contract or other written instrument, or under a statute or ordinance. CERTIORARI Directed against an entity or person exercising judicial or quasi-judicial functions. Entity or person is alleged to have acted: 1. Without jurisdiction; 2. In excess of jurisdiction; or 3. With grave abuse of discretion amounting to lack or excess of jurisdiction Purpose is to annul or nullify a proceeding

PROHIBITION Directed against an entity or person exercising judicial, quasi-judicial, or ministerial functions

MANDAMUS Directed against an entity or person exercising ministerial functions

Entity or person is alleged to have acted: 1. Without jurisdiction; 2. In excess of jurisdiction; or 3. With grave abuse of discretion amounting to lack or excess of jurisdiction

Entity or person is alleged to have acted: 1. Neglected a ministerial duty;or 2. Excluded another from a right or office

Purpose is to have respondent desist from further proceeding

Purpose is for respondent to 1. Do the act required; and

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

Covers discretionary acts

Covers discretionary and ministerial acts

2. To pay damages Covers ministerial acts

C. Writ of Certiorari- It is a writ issued by a superior court to an inferior court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. D. Petition for Prohibition- Legal remedy available to prevent inferior courts, or other tribunals, corporations, boards, officers, or persons, from usurping or exercising a jurisdiction with which they have not been vested by law, to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. E. Petition for Mandamus- Command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. F. Quo Warranto- It is the remedy or proceeding by which the sovereign or state determines the legality of a claim which a party asserts to the use or exercise of an office or franchise and ousts the holder from its enjoyment, if the claim is not well founded, or if the right to enjoy the privilege has been forfeited or lost. G. Expropriation- the procedure to be followed in the exercise of the right of eminent domain, which is the right of the State to acquire private property for public use upon payment of just compensation. H. Judicial and Extrajudicial Foreclosure JUDICIAL FORECLOSURE -requires court intervention - There is only an equity of redemption - Governed by Rule 68

EXTRAJUDICIAL FORECLOSURE - does not require court intervention - Right of redemption exists

EQUITY OF REDEMPTION

RIGHT OF REDEMPTION

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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- Governed by Act 3135

PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

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

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 title Governed by Rule 39, Sections 2931 Period is within 1 year from the registration of the Sheriff’s certificate of foreclosure title

I. Partition- The process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in the property. KINDS OF PARTITION 1. Judicial - procedure governed by Rule 69 2. Extrajudicial -no court intervention is required WHEN PARTITION MADE GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible. EXCEPTION: If a co-owner asserts adverse title to the property in which case the period of prescription runs from such time of assertion of adverse title. J. Forcible Entry and Unlawful Detainer FORCIBLE ENTRY Possession of land is unlawful from the beginning due to force, intimidation, threat, strategy or stealth No requirement of previous demand for defendant to vacate premises Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant 1-year period counted from date of actual entry or when plaintiff learned thereof.

UNLAWFUL DETAINER Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession Demand is jurisdictional Plaintiff need not have been in prior physical possession 1-year period demand

from

date

of

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION ACCION INTERDICTAL

ACCION PUBLICIANA

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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ACCION REIVINDICATORIA

last

PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

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

A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year RTC if value of property exceeds P20,000.00, or P50,000.00 in Metro Manila

An action for the recovery of ownership, which necessarily includes the recovery of possession

RTC if value of property exceeds P20,000.00, or P50,000.00 in Metro Manila

K. Contempt DIRECT CONTEMPT Committed in the presence of or so near a court or judge Punished summarily without hearing. No appeal may be taken but the party adjudged in contempt may avail himself of actions of certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed by the court is filed Remedy is certiorari or prohibition Certiorari/prohibition suspends execution provided there is a bond

INDIRECT CONTEMPT Not committed in the presence of the court Punished only after hearing – complaint in writing or motion or party or order of court requiring person to appear and explain, opportunity to appear and show cause Remedy is appeal Immediately executory bond is filed

unless

a

SPECIAL PROCEEDING A. RULE 73 - VENUE AND PROCESS JURISDICTION AND VENUE 1. Settlement of estate of deceased persons i. RTC – Gross value of the estate exceeds P300,000/P400,000 (Manila) ii. MTC – Gross value of the estate does not exceed P300,000/P400,000 (Manila) • If resident – place where deceased resided at time of death • If non-resident – place where deceased had estate • NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs. B. RULE 74 - SUMMARY SETTLEMENT OF ESTATES GENERAL RULE: The settlement of the estate of the decedent should be judicially administered through an administrator or executor.

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

EXCEPTIONS: 1. Extrajudicial settlement; 2. Summary settlement of estate of small value (not exceeding P10,000) BOND It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Sec. 4, Rule 74. • Bond filed is required only when personal property is involved. If real, it is subject to a lien in favor of creditor for full period of 2 years from such distribution and such lien cannot be substituted by a bond (Rebong vs. Ibanez, 79 Phil. 324 (1947)) C. RULE 75 - PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution. CUSTODIAN OF WILL TO DELIVER The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will. D. RULE 76 - ALLOWANCE OR DISALLOWANCE OF WILL PROBATE It is the act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried insofar as they are in accordance with law. WHO MAY PETITION FOR THE ALLOWANCE OF A WILL: 1. Any creditor as preparatory step for filing his claim therein; 2. Devisee or legatee 3. Person interested in the estate (heirs) 4. Executor 5. Testator himself during his lifetime. E. RULE 77 - ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER WILL PROVED OUTSIDE PHILIPPINES MAY BE ALLOWED HERE It is a requirement that a will which was probated in a foreign country be reprobated in the Philippines. If the decedent owns properties in different countries, separate proceedings must be had to cover the same. TWO TYPES OF ADMINISTRATION OF ESTATE PRINCIPAL ADMINISTRATION – Granted in the jurisdiction of the decedent’s domicile ANCILLARY ADMINISTRATION – Instituted where the decedent left his estate

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

• Administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator found in one state or country has no power over property in another state or country. (Leon vs. Manufacturers Life Insurance Co., 90 Phil. 459 (1951) F. RULE 78 - LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED WHO CAN ADMINISTER THE ESTATE 1. EXECUTOR – One named by the testator in his will for the administration of his property after his death 2. ADMINISTRATOR – One appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate 3. ADMINISTRATOR WITH A WILL ANNEXED – One 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 Executor Nominated by the testator appointed by the court

Administrator and Appointed by the court in case the testator did not appoint and executor or if the executor refused or if the will was disallowed or there is no will (intestacy)

Must present will to the court within 20 days after knowledge of death or of such appointment, unless the will has reached the court in any manner

No such duty

Testator may provide that he may serve without a bond (Court may still require but conditioned only in payment of debts) Compensation may be provided for by testator otherwise, compensation under Rule 85, Sec. 7

Must always post bond

Governed by Rule 85, Sec. 7

LETTERS TESTAMENTARY It is the authority issued to an executor named in the will to administer the estate. LETTERS OF ADMINISTRATION It is the authority issued by the court to a competent person to administer the estate of the deceased who died intestate. LETTERS OF ADMINISTRATION WITH A WILL ANNEXED It is the authority issued by the court to a competent person to administer the estate if the executor named in the will refused to accept the office.

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G. RULE 79 - OPPOSING ISSUANCE OF LETTERS TESTAMENTAY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION The main issue is the determination of the person who is rightfully entitled to administration. PERSONS TO OPPOSE THE ISSUANCE OF LETTERS: Any person interested in the will. In order to be a party, a person must have material and direct, and not one that is only indirect or contingent, interest. The opposition may be accompanied by a Petition for the issuance of Letters of Administration with the will annexed. • Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. • A petition may, at the same time, be filed for letters of administration with the will annexed. REQUIRED BEFORE HEARING: 1. Publication for 3 weeks 2. Notice to heirs, creditors and other persons believed to have an interest in the estate H. RULE 80 - SPECIAL ADMINISTRATOR SPECIAL ADMINISTRATOR He is appointed when there is a delay in granting letters testamentary or of administration by any cause, including an appeal from the allowance or disallowance of the will. WHEN MAY A PROBATE COURT APPOINT A SPECIAL ADMINISTRATOR: 1. Delay in granting of letters by any cause including appeal in the probate of the will 2. Executor is a claimant of the estate he represents (Sec.8, Rule 86) Administrator

Special Administrator

Appointment may be subject of appeal

Appointment not subject of appeal; Merely an interlocutory order

One of the obligations is to pay the debts of the estate

Cannot pay debts of the estate

Appointed when deceased died intestate or did not appoint an executor in the will or will was disallowed

Appointed when there is delay in granting letters testamentary or administration

GENERAL RULE: Only one special administrator may be appointed to administer an estate temporarily.

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EXCEPTION: If there are two factions among the heirs and the court deems it best to appoint more than one special administrator, justice and equity demand that both factions be represented in the management of the estate of the deceased. (Matias vs. Gonzales, 101 Phil. 852 (1957)) I. RULE 81 - BONDS OF EXECUTORS AND ADMINISTRATORS WHEN FILED: Before and executor or administrator enters upon the execution of his trust AMOUNT: To be fixed by the court CONDITIONS OF BOND OF SPECIAL ADMINISTRATOR: 1. Make and return a true inventory 2. Render accounting when required by court 3. Deliver the estate to the person appointed executor or administrator or other authorized persons J. RULE 82 - REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS WHEN LETTERS REVOKED AND POWERS CEASE: When the decedent’s will is allowed and proved by the court after the issuance of letters of administration GROUNDS FOR REMOVAL OF EXECUTOR OR ADMINISTRATOR: 1. Neglect to render account within 1 year and whenever required by the court 2. Neglect to settle estate according to these rules 3. Neglect to perform an order or judgment of the court or a duty expressly provided by these rules 4. Absconding 5. Insanity or incapability to discharge the trust POWERS OF NEW EXECUTOR OR ADMINISTRATOR 1. Collect and settle the estate not administered 2. Prosecute or defend actions commenced by or against the former executor or administrator 3. Have execution on judgments recovered in the name of former executor or administrator K. RULE 83 - INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILY INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS • Approval of an inventory is not a conclusive determination of what assets constituted the decedent’s estate and of the valuation thereof. Such determination is only provisional and a prima facie finding of the issue of ownership. (Garcila vs. Martin) • The 3-month period is not mandatory. The fact that an inventory was filed after the 3-month period would not deprive the probate court of jurisdiction to approve it. However, an administrator’s unexplained delay in

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filing the inventory may be a ground for his removal. (Sebial vs. Sebial, 64 SCRA 385 (1975)) L. RULE 84 - GENERAL PROVISIONS AND DUTIES OF EXECUTORS AND ADMINISTRATORS POWERS OF THE EXECUTOR OR ADMINISTRATOR OF THE ESTATE (BERIP): 1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner; 2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner; 3. To maintain in tenantable repairs, houses and other structures and fences and to deliver in such repair to the heirs or devisees when directed so to do by the court; 4. To make improvements on the properties under administration with the necessary court approval except for necessary repairs; 5. To possess and manage the estate when necessary; a. For the payment of debts b. For payment of expenses of administration. M. RULE 85 - ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS GENERAL RULE: The executor or administrator is accountable for the whole estate of the deceased. EXCEPTION: He is not accountable for properties which never came to his possession. EXCEPTION TO THE EXCEPTION: when through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge. N. RULE 102: HABEAS CORPUS Certiorari, Prohibition And Mandamus Special Civil Action (Rule 65) It reaches the RECORD, concerned with errors committed by a court DIRECT attack Failure of respondent to file comment will not be punished by CONTEMPT and will not even be declared in default. COURT and PREVAILING PARTY are named as respondents.

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Habeas Corpus Special proceeding. Reaches the body but not the record; inquiry on the legality of the detention. COLLATERAL attack Failure to file return constitute CONTEMPT (indirect) Respondent is the DETAINER.

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O. RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO THE CUSTODY OF MINORS (A.M NO. 03-04-04-SC) WHO MAY FILE PETITION (Sec. 2) A verified petition for the rightful custody of a minor may be filed by any person claiming such right. WHERE TO FILE PETITION (Sec. 3) Family courts in the province or city where the petitioner resides or where the minor may be found. GENERAL RULE: motion to dismiss is NOT allowed. EXCEPTION: On the ground of lack of jurisdiction over the subject matter or over the parties. (Sec. 6) WRIT OF AMPARO (Sec. 1) It is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof. THE WRIT OF HABEAS DATA (SEC. 1) 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 HABEAS CORPUS WRIT OF AMPARO HABEAS DATA (2007) (2008)

Rights involved

right to liberty of and rightful custody by the aggrieved party

right to life, liberty and security of the aggrieved party - covers extralegal killings and enforced disappearances

Kind of violation

actual violation of aggrieved party’s rights

Remedy for

Sec. 1 To all cases of illegal confinement or detention:

an actual or threatened violation of aggrieved party’s rights Sec. 1 To any person whose right to life, liberty, and security is

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the RIGHT TO PRIVACY in life, liberty or security of the aggrieved party - covers extralegal killings and enforced disappearances actual or threatened violation of aggrieved party’s right Sec. 1 To any person whose right to privacy in life, liberty, and

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1. By which any person is deprived of his liberty; or 2. By which the rightful custody of any person is withheld from the person entitled thereto

violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity

Respondent

may or may not be an officer

public official or employee or a private individual or entity

Who files

by the party for whose relief it is intended or by some other person in his behalf

by the aggrieved party or by any qualified person or entity in the following order: a) Any member of the immediate family of the aggrieved party, i.e. spouse, children and parents b) Descendant, ascendant or collateral relatives up to the 4th civil degree of consanguinity or affinity c) Any concerned citizen, organization, association or institution (right to

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security is violated or threatened with violation by any unlawful act or omission of a public official or employee, or of a private individual or entity engaged in: a. gathering b. colleting c. storing of data or information regarding the person, family, home and correspondence of the aggrieved party public official or employee or 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 By the aggrieved party; but in cases of extralegal killing and enforced disappearances, may be filed by: a) Any member of the immediate family of the aggrieved party, i.e. spouse, children and parents b) Descendant, ascendant or collateral relatives up to the 4th civil degree of consanguinity or affinity

PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014 file is successive) Where filed a. RTC or any judge thereof a. CA or any member thereof in instances authorized by law b. SC or any member thereof

a. RTC of the place where the threat act or omission was committed or any of its elements occurred a. Sandiganbayan or any justice thereof a. CA or any justice thereof b. SC or any justice thereof

b. Sec. 4: EXEMPT

e. Sec. 5: Only indigent petitioner is exempted

Date and Time of Hearing

Specified in the writ

Summary hearing: shall be conducted not later than 10 working days from the date

To Whom Writ is Served

to the person to whom it is directed; and if not found or prisoner not in his custody, it is served upon the person having custody of the prisoner If the person to whom the writ is directed neglects or refuses to obey or make return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to

Summary hearing: shall be conducted not later than 7 days from the date of issuance of the writ upon the respondent personally if it cannot be served, rules on substituted service will apply

if it cannot be served, rules on substituted service will apply

If the respondent refuses to make a return or makes a false return, he may be punished with Imprisonment or fine for committing contempt.

If the respondent refuses to make a return or makes a false return, he may be punished with Imprisonment or fine for committing contempt.

Docket and other fees

Consequences of refusal to obey the writ or making a false return

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c. RTC where 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 d. SC, CA or Sandiganbayan when the action concerns public data files of government offices Docket and other fees

upon the respondent personally

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deliver to the person demanding, within 6 hours after the demand therefore, a true copy of the warrant or order of commitment, he shall forfeit to the party aggrieved the sum of Php1,000 and may be punished for contempt. Hearing Ex Parte

May the application be consolidated with a criminal action filed subsequent to the petition? Enforceability of Writ

Who files the return?

To Which Court the Writ is Returnable

NO

Enforceable anywhere in the Phil. – if granted by SC/CA or any member of such courts: Enforceable only within judicial district — if granted by the RTC Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found If granted by the SC or CA or any member of such courts, it may be made returnable before the court or any member

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If the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte. YES

YES

Enforceable anywhere in the Philippines regardless of which court issued the writ

Enforceable anywhere in the Philippines regardless of which court issued the writ

Respondent files return

Respondent files return

If issued by the RTC or any judge thereof, it is returnable before such court or judge. If issued by the Sandiganbayan or the CA or any of their

If issued by the RTC or any judge thereof, it shall be returnable before such court or judge. If issued by the CA or Sandiganbayan or

PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

Contents of Return

Allowance or Disallowance of General Denial on Allegations Quantum of Proof Judgment

thereof or before an RTC or any judge thereof. If granted by the RTC or a judge thereof, it is returnable before himself.

justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred. If issued by the SC or any of its justices, it may be returnable before such court or any justice thereof, of the Sandiganbayan or CA or any of their justices, or to any RTC or the place where the threat, act or omission was committed or any of its elements occurred.

Sec. 10 Signed and shall also be sworn to if the prisoner is not produced

Sec. 9 Verified written return -period to file cannot be extended except on highly meritorious grounds A general denial of the allegations in the petition shall not be allowed.

Quantum of proof is clear and convincing evidence. After the court has examined the

Quantum of proof is substantial evidence.

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Within 10 days from the time the petition

any of their justices, it may be returnable before such court or any justice thereof, 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. If issued by the SC or any of its justices, it may be returnable before such court or any justice thereof, or before the CA or the Sandigandbayan or any of its justices, 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. Sec. 9 Verified written return - may be reasonably extended by the court for justifiable grounds A general denial of the allegations in the petition shall not be allowed.

Within 10 days from the time the petition

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Period to Appeal

cause of the capture and restraint, and is satisfied that prisoner is unlawfully imprisoned or restrained

is submitted for decision (substantial evidence only)

Within 48 hours from notice of the judgment or final order appealed from Order shall not be effective until a copy of the order has been served on the officer pr person detaining the prisoner and there is no appeal

5 working days from date of notice of the adverse judgment (via Rule 45, to the SC)

is submitted for decision (upon finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within 5 working days) 5 working days from date of notice of the adverse judgment (via Rule 45, to the SC)

1. Motion to dismiss 2. 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 and cross-claim 6. Third-party complaint 7. reply 8. Motion to declare respondent in default 9. Intervention 10. Memorandum for reconsideration of interlocutory orders or interim relief orders 11. Petition for certiorari,

1. Motion to dismiss 2. 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 and cross-claim 6. Third-party complaint 7. reply 8. Motion to declare respondent in default 9. Intervention 10. Memorandum for reconsideration of interlocutory orders or interim relief orders 11. Petition for certiorari,

Prohibited Pleadings

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Interim Reliefs

Sec. 12 1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safe keeping of the person imprisoned or restrained as the nature of the case requires 2. The court or judge must be satisfied that the person’s illness is so grave that he cannot be produced without any danger

mandamus, or prohibition against any interlocutory order

mandamus, or prohibition against any interlocutory order

*motion for extension to file return is not allowed for writ of amparo

*motion for extension to file return is not allowed for writ of amparo

Sec. 14 1. Temporary Protection order 2. Inspection Order 3. Production Order 4. Witness Protection order

Criminal Procedure 1. Prosecution of Offenses- It is an action by which the State prosecutes a person for an act or omission punishable by law. 2. Preliminary Investigation  For offenses which require preliminary investigation:  By filing the complaint with the proper officer for preliminary investigations  Refers to a complaint-affidavit, and is different from the complaint defined in Section 3 of Rule 110. 3. Arrest INSTANCES WHEN A WARRANT OF ARREST IS NOT NECESSARY (Sec.9 (c), Rule 112 1. if the complaint or information was filed after the accused was lawfully arrested without warrant 2. if the offense is punishable by fine only 3. if the complaint or information is filed with the MTC and it involves an offense which does not require PI, the judge may issue summons instead of warrant

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

of arrest if he satisfied that there is no necessity for placing the accused under custody. 4. Modes of Arrest a) Arrest by virtue of a warrant b) Arrest without a warrant under exceptional circumstances as may be provided by statute. (Sec 5,Rule 113) 5. Who may issue a warrant of arrest- The 1987 Constitution speaks of a judge 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 vs. Inting, G.R. No. 88919, July 25, 1990). 6. Bail- 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 hereinafter specified by the rule. 7. Forms of Bail 1. Corporate surety 2. Property bond 3. Cash deposit 4. Recognizance 8. Bail a matter of right 1. Before or after conviction by the MTC 2. Before conviction by RTC except when the imposable penalty is death, reclusion perpetua or life imprisonment AND the evidence of guilt is strong. 9. Bail when discretionary 1. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary. 2. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not more than 20 years is imposed and not one of the circumstances below is present and proved, bail is a matter of discretion. 10. Rights of the Accused a. TO BE PRESUMED INNOCENT b. TO BE INFORMED OF THE NATURE AND THE CAUSE OF THE ACCUSATION AGAINST HIM c. TO BE PRESENT AND DEFEND IN PERSON AND BY COUSEL AT EVERY STAGE OF THE PROCEEDING. 11. Arraignment and Plea ARRAIGNMENT means bringing the accused into court and informing him of the nature and cause of the accusation against him. Plea of guilty is mitigating if it is made before prosecution starts to present evidence. Except:  Where the plea of guilty was compelled by violence or intimidation;  When the accused did not fully understand the meaning and consequences of his plea;  Where the information is insufficient to sustain conviction of the offense charge;

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 Where the information does not charge an offense, any conviction thereunder being void;  Where the court has no jurisdiction. 12. Motion to Quash – Grounds 1. Facts charged do not constitute an offense 2. Court trying the case has no jurisdiction over the offense charged 3. Court trying the case has no jurisdiction over the person of the accused 4. Officer who filed the information had no authority to do so 5. Information does not conform substantially to the prescribed form 6. That more than one offense is charged (duplicitous information) 7. Criminal action or liability has been extinguished 8. Information contains averments which, if true, would constitute a legal excuse or justification 9. 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) 13. Time to move to quash GENERAL RULE: A motion to quash (MTQ) may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court. EXCEPTIONS: Under Sec. 9, Rule 117, this adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground: 1. that the facts alleged in the information charge no offense; 2. that the court has no jurisdiction over the offense charged; 3. that the offense or penalty has prescribed, or 4. that the doctrine of double jeopardy precludes the filing of the information 14. Effects of Motion to quash if denied or granted If the ground for the motion is either: 1. facts charged do not constitute an offense 2. officer who filed the information had no authority to do so 3. information does not conform substantially to the prescribed form 4. duplicitous information 15. Trial- is the examination before a competent tribunal according to the laws of the land, of the facts put in issue in a case for the purpose of determining such issue. • 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 the pre-trial order. 16. Demurrer to Evidence -It is a motion to dismiss due to the insufficiency of the evidence presented by the prosecution to overturn the presumption of innocence in favour of the accused. 17. When it can be filed? After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence: 1. On its own initiative after giving the prosecution the opportunity to be heard; or

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

2. Upon demurrer to evidence filed by the accused with or without leave of court. 18. Judgment - is the 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 provided for by law. 19. Search Warrant- is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it to the court.

Evidence A. Admissibility of Evidence The evidence must be: 1. Relevant – such a relation to the fact in issue as to induce belief in its existence or non-existence. A matter of relationship between the evidence and a fact in issue. • Evidence on the credibility or lack of it of a witness is always relevant. In every proceeding, the credibility of the witness is always an issue. 2. Competent – if not excluded by the law or the rules. Doctrine of the “Fruit of the Poisonous Tree” – posits that all evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed. B. Judicial Admissions may be made in:



1. The pleadings filed by the parties; 2. In the course of the trial either by verbal or written manifestations or stipulations; 3. In other stages of the judicial proceeding, as in the pre-trial of the case; 4. Admissions obtained through depositions, written interrogatories or requests for admissions. Judicial admission can be made by either a party or counsel.

Judicial admissions may be contradicted only when it is shown that: 1. It was made through palpable mistake; or 2. That no such admission was made. Remedy of a party who gave a judicial admission: 1. In case of a WRITTEN judicial admission Motion to withdraw the pleadings, motion or other written instrument containing such admission; 2. In case of an ORAL judicial admission Counsel in open Court may move for the exclusion of such admission. D. The “chain of custody” method of authentication requires that every link in the chain of custody – every person who possessed the object since it was first recognized as being relevant to the case, must explain what he did with it.

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In order that photographs may be given as evidence1. It must be shown that it is the true and faithful representation of the place or object which to which they refer; 2. It must be verified by: a. The photographer; or b. Any person acquainted with the object represented and testifies that the same faithfully represents the object. For tape recordings, the ff. must be shown: (PRO-ANIV) 1. Manner of the preservation of the recording 2. The recording device was capable of recording testimony; 3. The operator of the device was competent 4. Establishment of the correctness or authenticity of the recording; 5. Deletions, additions, changes have not been made; 6. Identification of the speakers; and 7. Testimony elicited was voluntarily made. Authenticated fingerprints may be compared to fingerprints found on the crime scene.

E. Documentary Evidence a. Best Evidence Rule ORIGINAL DOCUMENT MUST BE PRODUCED; EXCEPTIONS GENERAL RULE: The original document must be produced. EXCEPTIONS: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office BEST EVIDENCE RULE - is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. The Best Evidence Does NOT Apply in the following cases: 1. When the purpose is to show the existence, execution or delivery without reference to its terms; 2. To make testimony coherent and intelligible; 3. To admit as to contents of writing and where subject of preliminary crossexamination to lay the basis for confrontation.

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4. Where there is no bona fide dispute on the contents of the documents and no useful purpose would be served by its production. b. Secondary Evidence SECONDARY EVIDENCE – shows that better or primary evidence exists as to the proof of fact in question. It is deemed less reliable. WHAT MUST BE PROVED TO ADMIT SECONDARY EVIDENCE a. The due execution of the original; b. Loss, destruction or unavailability of all such originals; c. Reasonable diligence and good faith in the search for or attempt to produce the original. THE DUE EXECUTION CAN BE PROVED THROUGH THE TESTIMONY OF EITHER: 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 or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof.. c. Parol Evidence Rule EVIDENCE OF WRITTEN AGREEMENTS GENERAL RULE: When the terms of an agreement have been reduced to writing, it is to be considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. EXCEPTION: 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 any of the following: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. The failure of the written agreement to express the true intent and agreement of the parties thereto; 3. The validity of the written agreement; or 4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. PAROL EVIDENCE – any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. 1. Where the collateral agreement is not inconsistent with the terms of the written contract; 2. Where the collateral agreement has not been integrated in and is independent of the written contract as where it is suppletory to the original contract; 3. Where the collateral agreement is subsequent to or nugatory of the written contract; and 4. Where the collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective, but this exception shall not apply to a condition subsequent not stated in the agreement.

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

E. Testimonial Evidence - or oral evidence is evidence elicited from the mouth of a witness as distinguished from real and documentary evidence. It is sometimes called viva voce or by word of mouth. The person who gives the testimony is called a “witness”. a. COMPETENCY OF A WITNESS – is the legal fitness or ability of a witness to be heard on the trial of a cause. GENERAL RULE: When a witness takes the stand to testify, the law, on grounds of public policy, presumes that he is competent. The court cannot reject the witness if there is no proof of his incompetency. B. DISQUALIFICATION BY REASON OF MARRIAGE WHEN RULE APPLICABLE The rule applies to any form of testimony; therefore it protects against using the spouse-witness’s admission or against compelling him to produce documents. Purpose: To obviate perjury and to prevent domestic disunity and unhappiness. Who May Object: Only the spouse-party and not the other spouse who is offered as a witness. Requisites: 1. That the spouse for or against whom the testimony is offered is a party to the case; 2. That the spouse are legally married (valid until annulled); 3. Testimony is offered during the existence of marriage; and 4. The case is not one of the exceptions provided in the rule. EXCEPTIONS: The rule on disqualification DOES NOT APPLY in the following: 1. Where the testimony was made outside the marriage; 2. In a civil case by one spouse against the other; 3. In a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants; o The disqualification does not apply where an offense directly attacks or directly and vitally impairs the conjugal relations.  It does not also apply in the case of estranged spouses, 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 (Alvarez vs. Ramirez, 473 SCRA 72, October 14, 2005 citing People vs. Castaneds, 271 SCRA 504). 4. Where the spouse-party gives his/her consent; 5. Where the spouse-party fails to raise the disqualification seasonably. REASON FOR THE EXCEPTION The identity of the interest of person disappears and the consequent danger of perjury based on that identity is non-existent. And in such a situation, the security and confidence of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home.

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C. DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY This section is called THE SURVIVORSHIP DISQUALIFICATION RULE OR DEAD MAN’S STATUTE. It constitutes only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified, unlike the marital disqualification rule which is complete and absolute disqualification. D. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION THE FOLLOWING PERSONS CANNOT TESTIFY AS TO MATTERS LEARNED IN CONFIDENCE IN THE FF CASES: 1. The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except 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 descendants or ascendants 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. 3. A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any evidence or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient. 4. A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs. 5. A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. a.

Marital Privilege

1. There was a valid marital relation; 2. The privilege is invoked with respect to a confidential communication between the spouses during said marriage; 3. The spouse against whom such evidence is being offered has not given his or her consent to such testimony. EXCEPTIONS: 1. That the case in which the husband or the wife is called to be examined is not a civil case instituted by one against the other; 2. That it is not a criminal case for a crime committed by one against the other.

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DISQUALIFICATION BY REASON OF MARRIAGE

MARITAL PRIVILEGE

Can be invoked only if one of the spouses is a party to the action,

Can be claimed whether or not the spouse 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

Can be claimed even after the marriage has been dissolved

b.

Applies only to confidential communications between the spouse

Attorney-Client Privilege

REQUISITES: 1. There is an attorney and client relation; 2. The privilege is invoked with respect to a confidential communication between them in the course of professional employment; and 3. The client has not given his consent to the attorney’s testimony. c. Physician-Patient Privilege REQUISITES: 1. The physician is authorized to practice medicine, surgery, or obstetrics; 2. The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; 3. The information is confidential. 4. The information, advice or treatment, if revealed, would blacken the reputation of the patient; and 5. The privilege is invoked in a civil case, whether patient is a party or not. d. Privileged communications to Minister or Priest and Penitent REQUISITES: 1. That the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong; and 2. Must be confidential and penitential in character. Example: under seal of the confessional d. Privileged communications to Public Officers REQUISITES: 1. The holder of the privilege is the government acting through a public officer. 2. That it was made to the public officer in official confidence; 3. The communication was given during the term of office of the public officer but the privilege may be invoked not only during the term of office of the public officer but also after. 4. That public interest would suffer by the disclosure of such communication, as in the case of State secrets.

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e. SECTION 25. PARENTAL AND FILIAL PRIVILEGE No person may be compelled to testify against his parents, other direct ascendants, children or other direct ascendants. It was not correctly a rule of disqualification, as the descendant was not incompetent or disqualified to testify against his ascendants, but was actually a privilege to testify, hence it was referred to as “filial privilege”. F. Admissions and Confessions a. Res Inter Alios Acta Rule This section refers to the first branch of the rule of “RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET.” It is corollary known as the second branch of the rule, is found in Section 34 of Rule 130. EXCEPTIONS: 1. Third person is a partner, agent, joint owner, joint debtor or has a joint interest with the party (Section 29); 2. Co-conspirator (Section 30); 3. Privy of the party (Section 31). . G.

HEARSAY RULE

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 A witness can testify only to those facts which he knows of his personal knowledge, that is which are derived from his own perception except as otherwise provided in these rules. Hearsay includes all assertions which have not been subject to opportunity for cross examination by the adversary at the trial in which they are being offered against him. It covers written or oral statements, Its probative value depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it sought to produce it. (Estrada v. Desierto, 356SCRA108) Double Hearsay are those which are derived from another who also has no personal knowledge of the matters testified to. (e.g. Newspaper articles) SECTION 37. DYING DECLARATION.- 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. REQUISITES: 1. That the death is imminent and the declarant is conscious of such fact; 2. That the declaration refers to the cause and the surrounding circumstances of such death

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

3. That the declaration refers to the facts which the victim is competent to testify to; 4. That the declaration is offered in a case wherein the declarant’s death is subject of the inquiry (the victim necessarily must have died); 5. That the statement must be complete in itself. (People v. De Joya, 203 SCRA 343). 6. The declarant should have died. SECTION 38. DECLARATION AGAINST INTEREST DECLARATION AGAINST INTEREST Exception to the hearsay rule admissible Secondary evidence and admissible only if the declarant is already dead or unavailable to testify The fact asserted in the declaration must have been at the time it was made so far contrary to the declarant’s own interest.

ADMISSIONS Covered by the hearsay rule Primary evidence and admissible even if the declarant is available as a witness Need not be considered by the declarant as opposed to his interest at the time when made, it is enough if it is inconsistent with his present claim and defenses.

REQUISITES: 1. That the declarant is dead and unable to testify; 2. That it relates to facts against the interest of the declarant; 3. That at the time he made the said declaration the declarant was aware that the same was contrary to his aforesaid interest; and 4. That the declarant had no motive to falsify and he believed such actual declarant to be true. SECTION 39. ACT OR DECLARATION ABOUT PEDIGREE. PEDIGREE includes relationship, family geneology, birth, marriage , death, the dates when and the places where these facts occurred and the names of the relatives. It also embraces facts or family history intimately connected with pedigree. (Rule 130, Sec 39) It is the history of family descent which is transmitted from one generation to another by both oral and written declarations and by traditions. (Francisco, 1997) REQUISITES: 1. The actor or declarant is dead or unable to testify. 2. The act or declaration is made by a person related to the subject by birth or marriage. 3. The relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration and 4. The act or declaration was made ante litem motam or prior to the controversy.

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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SECTION 40. FAMILY REPUTATION OR TRADITION. SECTION 39 Act or declaration against pedigree

SECTION 40 Family reputation or tradition regarding pedigree

Witness need not be a member of the family Testimony is about what declarant, who is dead or unable to testify, said concerning the pedigree of the declarant’s family

Witness is a member of the family

Relation of the declarant and the person subject of the inquiry must be established by independent evidence.

Testimony is about family reputation or tradition covering matters of pedigree. The witness is himself the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family.

SECTION 41. COMMON REPUTATION. 1. matters of public interest more than 30 years old; 2. matters of general interest more than 30 years old; 3. matters respecting marriage or moral character and related facts; 4. Individual moral character. RES GESTAE – literally means things done; it includes circumstances, facts, and declarations incidental to the main facts or transaction necessary to illustrate its character and also includes acts, words, or declarations which are closely connected therewith as to constitute part of the transaction. RES GESTAE IN CONNECTION DYING DECLARATIONS WITH A HOMICIDAL ACT May be made by the killer himself after or during the killing OR that of a 3rd person May precede or be made after the homicidal attack was committed Justification in the spontaneity of the statement

Can be made only by the victim

Made only after the homicidal attack has been committed Trustworthiness based upon in its being given in awareness of impending death

SECTION 43. ENTRIES IN THE COURSE OF BUSINESS REQUISITES: 1. That the entrant made the entry in his professional capacity or in the performance of a duty; 2. The entry was made in the ordinary course of business or entry;

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

3. The entries must have been made at or near the time of the transaction to which they relate; 4. The entrant must have been in a position to know the facts stated in the entries; and 5. The entrant must be deceased or unable to testify. SECTION 44. ENTRIES IN OFFICIAL RECORDS REQUISITES: 1. That it was made by a public officer or by another person specially enjoined by the law to do so; 2. That it was made by any a public officer in the performance of his duty specially enjoined by law; and 3. The public officer or the other person has sufficient knowledge of the facts by him stated which must have been acquired by him personally or through official information. ENTRIES IN THE COURSE OF BUSINESS

ENTRIES IN OFFICIAL RECORDS

The person who made the entries must be dead or unable to testify.

There is no such requirement.

Needs authentication Best evidence applies

Need not be authenticated Exception best evidence (irrevocability of public records)

The entries are made pursuant to a duty, legal, contractual, moral or religious.

The entrant is a public officer, or if a private individual must have acted pursuant to a specific legal duty.

rule

SECTION 45. COMMERCIAL LIST AND THE LIKE REQUISITES: 1. Statements of matters of interest to persons engaged in an occupation; 2. The statements must be contained in a list, register, periodical or other published compilation; 3. The compilation was published for use by persons engaged in that occupation; and 4. Is generally relied upon by them. SECTION 46. LEARNED TREATISES In order that a published treatise, periodical, or pamphlet on a subject of law, history, science, or art may be admissible, it is necessary either: 1. That the court can take judicial notice of it; or 2. A witness expert on the subject testifies that the writer of the statement in the treatise, periodical, or pamphlet is recognized in his profession or calling as expert in the subject. SECTION 47. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING REQUISITES:

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1. The testimony or depositions of a witness deceased or unable to testify; 2. The testimony was given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the subject matter; and 5. The adverse party having had an opportunity to cross-examine him. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENT The witness may testify to the statements made by a person, if for instance, the fact that such statements were made by the latter would indicate the latter’s mental state and physical condition. Independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. INDEPENDENTLY RELATIVE STATEMENTS An out of court declaration which while having certain characteristics of hearsay evidence, is not actually hearsay but is original evidence. These are statements which are relevant independently whether they are true or not. It is also called the apparent hearsay. A declarant assertion based on the say-so of another is hearsay only if offered to prove the truth of the assertion. If the assertion were offered to prove something else, say its tenor merely, then it is not hearsay and is a direct unattributed assertion for that purpose i.e. to prove the fact that the assertion was made and NOT the truth of the assertion, (Bautista, 2007) RULES ON ELECTRONIC EVIDENCE August 1, 2001 Q. When is electronic evidence regarded as being the equivalent of an original document under the Best Evidence Rule? (Bar Question 2003) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. OPINION RULE OPINION – an inference or conclusion drawn from facts observed. GENERAL RULE: Witnesses must give the facts and not their inference, conclusions, or opinions. EXCEPTIONS: 1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess (Section 49); 2. The identity of a person about whom he has adequate knowledge (Section 50[a]); 3. A handwriting with which he has sufficient familiarity (Section 50 [b]); 4. The mental sanity of a person with whom he is sufficiently acquainted (Section 50[c]); 5. The witness’ impressions of the emotion, behavior, condition, or appearance of a person (Section 50[d]).

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RULE ON DNA EVIDENCE A.M. No. 11-5-SC Effective October 15, 2007 Biological Sample – any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones. DNA (Deoxyribonucleic Acid) – the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins. DNA Evidence – constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. DNA Testing – 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). RULE 133 - WEIGHT AND SUFFICIENCY OF EVIDENCE Weight of Evidence is the probative value or credit that the court gives to particular evidence admitted to prove a fact in issue. Admissibility of evidence and its weight are different. The admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade (Agpalo, p.388). Direct Evidence Circumstantial HIERARCHY OF EVIDENCE Evidence 1. Proof beyond reasonable doubt 2. Circumstantial Evidence to sustain Establishes the Does not prove conviction existence of a fact the existence of a 3. Clear and convincing evidence in issue without fact in issue 4. Preponderance of evidence the aid of any directly, but 5. Substantial eviden inference or merely provides presumption. for logical inference that SECTION 3. EXTRAJUDICIAL such fact really CONFESSION, NOT SUFFICIENT GROUND exists. FOR CONVICTION An extrajudicial confession is not sufficient The witnesses Each proof is ground for conviction UNLESS corroborated testify directly of given of facts and by evidence of corpus delicti. their own circumstances knowledge as to from which the CORPUS DELICTI is the actual commission the main facts to court may infer by someone of the particular crime charged. be proved. other connected TWO ELEMENTS: . facts which reasonably follow, according to the common Remedial Law Class of 2014 experience of Adviser: Dean Poncevic Ceballos 40 mankind.

PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

1. That a certain result has been proved; 2. That someone is criminally responsible for the act.

KATARUNGAN PAMBARANGAY LAW (RA 7160) Objectives – to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought by the indiscriminate filing of cases in the courts. Parties residing in the same city or municipality are bound to submit their disputes to the Lupon for conciliation/amicable settlement. EXCEPTIONS:

a. Where one party is the government or any subdivision or instrumentality thereof; b. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; c. Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five Thousand pesos (P5, 000.00); d. Offenses where there is no private offended party; e. 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; f. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto to submit their differences to amicable settlement by an appropriate lupon; g. Such other classes of disputes which the President may determine in the interest or upon the recommendation of the Secretary of Justice. SMALL CLAIMS

SCOPE – The rule shall apply in all action before the MTC/MCTC for payment of money where the value of the claim does not exceed P100, 000.00, exclusive of interest and cost (Sec 2 of the Rule) EFFECT OF NON-PAYMENT OF DOCKET FEES:

a. The case shall be dismissed without prejudice. b. The remedy of the plaintiff would be to re-file the case.

GROUNDS FOR THE DISMISSAL OF THE SMALL CLAIM CASES MOTU PROPIO: a. Lack of jurisdiction over the subject matter of the case; b. Litis pendentia; c. Res judicata;

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d. Prescription. EFFECT OF FAILURE OF THE PARTIES TO APPEAR: a. On the part of the plaintiff: Dismissal of the claim without prejudice, and the defendant who appeared shall be entitled to judgment on a permissive counterclaim. Remedy: Refile the case. b. On the part of the defendant: It shall have the effect of as failure to file a Response, and the court, by itself render judgment based on the facts alleged in the Statement of Claims but only limited to what is prayed for therein. c. On both parties: Dismissal of both the claim and counterclaim with prejudice.

A.M. No. 12-8-8-SC JUDICIAL AFFIDAVIT RULE Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino accompanied by a translation in English or Filipino, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness; (b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached docun1entary and object evidence and establish their authenticity in accordance with the Rules of Court; (e) The signature of the witness over his printed name; and (f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to adn1inister the same. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. (b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment A.M. No. 11-9-4-SC

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

EFFICIENT USE OF PAPER RULE Format and Style. - All pleadings, motions, and similar papers intended for the court and quasi-judicial body's consideration and action (court-bound papers) shall be written in single space with a one and-a-half space between paragraphs, using an easily readable font style of the party's choice, of 14-size font, and on a 13inch by 8.5-inch white bond paper; Margins and Prints. - The parties shall maintain the following margins on all court-bound papers: a left hand margin of 1.5 inches from the edge; an upper margin of 1.2 inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower margin of 1.0 inch from the edge. Every page must be consecutively numbered.

A.M. No. 09-6-8-SC Rules of Procedure for Environmental Cases Scope and applicability of the Rule (1) 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 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; (b) PD 705, Revised Forestry Code; (c) PD 856, Sanitation Code; (d) PD 979, Marine Pollution Decree; (e) PD 1067, Water Code; (f) PD1151, Philippine Environmental Policy of 1977; (g) PD 1433, Plant Quarantine Law of 1978; (h) PD 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (i) RA 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) RA 4850, Laguna Lake Development Authority Act; (k) RA 6969, Toxic Substances and Hazardous Waste Act; (l) RA 7076, People’s Small-Scale Mining Act; (m) RA 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (n) RA 7611, Strategic Environmental Plan for Palawan Act; (o) RA 7942, Philippine Mining Act;

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

(p) (q) (r) (s) (t) (u) (v) (w) (x) (y) (z) (aa) (bb) (cc) (dd) (ee) (ff) (gg) (hh) (ii) (jj)

RA 8371, Indigenous Peoples Rights Act; RA 8550, Philippine Fisheries Code; RA 8749, Clean Air Act; RA 9003, Ecological Solid Waste Management Act; RA 9072, National Caves and Cave Resource Management Act; RA 9147, Wildlife Conservation and Protection Act; RA 9175, Chainsaw Act; RA 9275, Clean Water Act; RA 9483, Oil Spill Compensation Act of 2007; and Provisions in CA 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; RA 7160, Local Government Code of 1991; RA 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); RA 7308, Seed Industry Development Act of 1992; RA 7900, High-Value Crops Development Act; RA 8048, Coconut Preservation Act; RA 8435, Agriculture and Fisheries Modernization Act of 1997; RA 9522, The Philippine Archipelagic Baselines Law; RA 9593, Renewable Energy Act of 2008; RA 9637, Philippine Biofuels Act; and Other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources.

Continuing mandamus is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. Strategic lawsuit against public participation (SLAPP), a.k.a. SLAPP Suit refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. Pleadings and motions allowed. – The pleadings and motions that may be filed are: a. Complaint; b. Answer, which may include: i. Compulsory counterclaim; and ii. cross-claim c. Motion for intervention; d. Motion for discovery; and e. Motion for reconsideration of the judgment.

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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Motion for postponement, motion for new trial and petition for relief from judgment shall be allowed in highly meritorious cases or to prevent a manifest miscarriage of justice. Prohibited pleadings or motions. – The following pleadings or motions shall not be allowed: (a) Motion to dismiss the complaint; (b) Motion for a bill of particulars; (c) Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days; (d) Motion to declare the defendant in default; (e) Reply and rejoinder; and (f) Third party complaint. Citizen suit. – Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Payment of filing and other legal fees. – The payment of filing and other legal fees by the plaintiff shall be deferred until after judgment unless the plaintiff is allowed to litigate as an indigent. It shall constitute a first lien on the judgment award. Prohibition against Temporary Restraining Order and Preliminary Injunction (Sec. 10, Part 2, Rule 2) - Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof (Sec. 10, Part 2, Rule 2). -

In the absence of evidence overcoming this presumption of regularity, no court can issue a TRO or injunctive writ. It is only the SC which can issue a TRO or an injunctive writ in exceptional cases.

Effect of failure to appear at pre-trial. – The court shall not dismiss the complaint, except upon repeated and unjustified failure of the plaintiff to appear. The dismissal shall be without prejudice, and the court may proceed with the counterclaim. - If the defendant fails to appear at the pre-trial, the court shall receive evidence ex parte. Judgment not stayed by appeal. – Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court. Republic Act 9285 Alternative Dispute Resolution Act (ADR Act)

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

Exception to the Application of the ADR Act. The provisions hereof shall not apply to the resolution or settlement of the following: (a) labor disputes covered by Presidential Decree No. 442, otherwise known as the "Labor Code of the Philippines, as amended", and its Implementing Rules and Regulations; (b) the civil status of persons; (c) the validity of marriage; (d) any ground for legal separation; (e) the jurisdiction of courts; (f) future legitime; (g) criminal liability; (h) those disputes which by law cannot be compromised; and (i) disputes referred to court-annexed mediation. Arbitration means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties or these Rules, resolve a dispute by rendering an award. Scope of Application. These Rules apply to voluntary mediation, whether ad hoc or institutional, other than court-annexed mediation and only in default of an agreement of the parties on the applicable rules. These Rules shall also apply to all cases pending before an administrative or quasi-judicial agency that is subsequently agreed upon by the parties to be referred to mediation. INTERNATIONAL COMMERCIAL ARBITRATION Recognition and Enforcement. (a) A foreign arbitral award shall be recognized as binding and, upon petition in writing to the Regional Trial Court, shall be enforced subject to the provisions hereof; (b) The petition for recognition and enforcement of such arbitral awards shall be filed with the Regional Trial Court in accordance with the Special ADR Rules.

i.

Convention Award - The New York Convention shall govern the recognition and enforcement of arbitral awards covered by said Convention. The petitioner shall establish that the country in which the foreign arbitration award was made is a party to the New York Convention.

ii.

Non-Convention Award - The recognition and enforcement of foreign arbitral awards not covered by the New York Convention shall be done in accordance with procedural rules to be promulgated by the Supreme Court. The court may, on grounds of comity and reciprocity, recognize and enforce a non-convention award as a convention award.

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(c) The party relying on an award or applying for its enforcement shall file with the Regional Trial Court the original or duly authenticated copy of the award and the original arbitration agreement or a duly authenticated copy thereof. If the award or agreement is not made in an official language of the Philippines, the party shall supply a duly certified translation thereof into such language. (d)A foreign arbitral award when confirmed by a court of a foreign country, shall be recognized and enforced as a foreign arbitral award and not as a judgment of a foreign court. (e)A foreign arbitral award when confirmed by the Regional Trial Court shall be enforced in the same manner as final and executory decisions of courts of law of the Philippines. (f) If the Regional Trial Court has recognized the arbitral award but an application for (rejection and/or) suspension of enforcement of that award is subsequently made, the Regional Trial Court may, if it considers the application to be proper, vacate or suspend the decision to enforce that award and may also, on the application of the party claiming recognition or enforcement of that award, order the other party seeking rejection or suspension to provide appropriate security.

Domestic Arbitration Judgment. Upon the grant of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith in the court where said application was filed. Costs of the application and the proceedings subsequent thereto may be awarded by the court in its discretion. If awarded, the amount thereof must be included in the judgment. Judgment will be enforced like court judgments. Appeal. A decision of the court confirming, vacating, setting aside, modifying or correcting an arbitral award may be appealed to the Court of Appeals in accordance with Special ADR Rules. The losing party who appeals from the judgment of the Court confirming an arbitral award shall be required by the Court of Appeals to post a counterbond executed in favor of the prevailing party equal to the amount of the award in accordance with the Special ADR Rules. Mediation-Arbitration (a) A Mediation-Arbitration shall be governed by the rules and procedure agreed upon by the parties. In the absence of said agreement, rules on Mediation shall first apply and thereafter, rules on Domestic Arbitration.

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

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PHILIPPINE CHRISTIAN UNIVERSITY COLLEGE OF LAW Remedial Law Reviewer 2014

(b) No person shall, having been engaged and having acted as mediator of a dispute between the parties, following a failed mediation, act as arbitrator of the same dispute, unless the parties, in a written agreement, expressly authorize the mediator to hear and decide the case as an arbitrator. (c) The mediator who becomes an arbitrator pursuant to this Rule shall make an appropriate disclosure to the parties as if the arbitration proceeding had commenced and will proceed as a new dispute resolution process, and shall, before entering upon his/her duties, execute the appropriate oath or affirmation of office as arbitrator in accordance with these Rules

Remedial Law Class of 2014 Adviser: Dean Poncevic Ceballos

48