AUF - Soriano 01 (Brondial 2016) (B&W)

CIVIL PROCEDURE I.

JURISDICTION

A.

CLASSES OF JURISDICTION

1.

General vs. Special

matters within its exclusive jurisdiction, and to prevent further overcrowding of the Court’s docket.

General Jurisdiction – the power to adjudicate all controversies except those expressly withheld from the plenary powers of the court;

The SC will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances justify the availment of the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. (see Liga ng mga Barangay vs. City of Manila)

Special Jurisdiction – restricts the court’s jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law.

However, when cases brought before the appellate courts do not involve factual but legal questions, a strict application of the rule of hierarchy of courts is not necessary. (see Agan vs. PIATCO)

E.g., Drugs Court; Environmental Court.

Moreover, when the rights of the parties have been extremely prejudiced because of the delay in the ruling of the court and damage has already set in, then the SC can take action and rule on the matter.

2.

Intellectual

Property

Court;

Commercial

Court;

Original vs. Appellate 2.

Original Jurisdiction - the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law.

Doctrine of Transcendental Importance (see Liga ng mga Barangay vs.

City of Manila); 3.

Supreme Court is not a trier of facts. Exception: in the interest of substantial justice.

Appellate Jurisdiction - the authority of a court higher in rank to reexamine the final order of judgment of a lower court which tried the case now elevated for judicial review.

3.

Exclusive vs. Concurrent

Exclusive Jurisdiction - the power to adjudicate a case or proceeding to the exclusion of all other courts at that stage. e.g. Declaratory Relief and Ejectment cases – RTC; Ejectment Cases – MTC; Annulment of Marriage – Family Court. Concurrent Jurisdiction (Concurrent or Confluent) - the power conferred upon different courts, whether of the same or different ranks, to take cognizance of the same case in the same or different judicial tribunals. Where concurrent jurisdiction exists in several tribunals, the body that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others (see Pat-og vs. Civil Service Commission) Concurrent Jurisdiction applies only to original and not appellate. In appeals, there is only one court that has jurisdiction. The RTC, CA and SC have concurrent jurisdiction over: petitions for certiorari, mandamus, quo warranto, writ of amparo and writ of habeas data, among others, subject to the principle of the Hierarchy of Courts.

Important Principles jurisdiction: 1.

of

Jurisdiction

relative

to

concurrent

Hierarchy of Courts The concurrence of jurisdiction in the RTC, CA and SC, is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor0 will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those

Administrative Proceedings against public school teachers: the CSC, the Department of Education (DepEd) and the Board of Professional TeachersProfessional Regulatory Commission (PRC) have concurrent jurisdiction over administrative cases against public school teachers. (Pat-og vs. CSC)

4.

Delegated Jurisdiction - under BP 129, the grant of authority to inferior courts to hear and determine cadastral and land registration cases under where the assessed value does not exceed P100,000 and there are no oppositions. (See Sec 34) Appeal from the exercise of a lower court of delegated jurisdiction is with the Court of Appeals not with the RTC. Primary Jurisdiction – authority of administrative bodies to take cognizance certain cases before it can be brought before regular courts. Special Jurisdiction - under BP 129, the power of inferior courts to hear and decide petitions for a writ of habeas corpus or applications for bail in the absence of RTC judges in the trial or city Territorial Jurisdiction - refers to the geographical area within which its powers can be exercised. Residual Jurisdiction – jurisdiction of the trial courts that remains even after losing jurisdiction over the case because of appeal. A trial court loses complete jurisdiction over a case when an appeal is perfected and the period to appeal has expired.

Distinguished from Residual Prerogatives – which is the authority of the appellate court to dismissal case motu propio. (see Katon vs. Palanca) When? a. Rule 17, Sec. 3: i. Failure of the plaintiff to appear on the date of the presentation of his evidence in chief for a unreasonable period of time; ii. Failure of the plaintiff to prosecute his action for an unreasonable length of time; iii. Failure of the plaintiff to comply with an order of the court. b.

c.



Other Classes

Rule 9, Sec. 1: i. Lack of jurisdiction ii. Res judicata iii. Litis pendentia; iv. Prescription. In cases governed by the Rules on Summary Procedure.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Jurisdiction vs. Venue JURISDICTION The authority to hear and determine a case. Matter of substantive law. Establishes a relation between the court and the subject matter. Fixed by law and cannot be conferred by the parties.

VENUE The place where the case is to be heard. Matter of procedural law. Establishes a relation between the plaintiff and defendant or petitioner and respondent. May be conferred by the act or agreement of the parties.

Venue is jurisdiction in criminal cases. Territories are essential in determining the venue and court which has jurisdiction over the case, unlike in civil cases, where territorial jurisdiction of the courts are essential only for venue purposes. B.

REQUISITES FOR THE EXERCISE OF JURISDICTION

1.

Jurisdiction over the plaintiff or petitioner - acquired by the filing of the complaint, petition or initiatory pleading before the court by the plaintiff or petitioner. Jurisdiction over the defendant or respondent - acquired by the voluntary appearance or submission by the defendant or respondent to the court or by coercive process issued by the court to him, generally by service of summons.

2.

ANSWER: No. Jurisdiction is determined by the allegations in the pleadings which guide the judge whether a particular case falls within his jurisdiction as conferred by law.

Criminal Case: The jurisdiction of the court over criminal cases is determined by the allegations in the Information or the Complaint and the statute in effect at the time of the commencement of the action, unless such statute provides for a retroactive application thereof. The jurisdictional requirements must be alleged in the Information. Such jurisdiction of the court acquired at the inception of the case continues until the case is terminated. (Escobal vs.

Garchitorena) C.

CLASSIFICATION OF COURTS: Kind Of Court Courts of General Jurisdiction Courts of Limited Jurisdiction

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. (Biaco vs.

Courts of Original Jurisdiction Courts of Appellate Jurisdiction Superior Courts

Philippine Countryside Rural Bank) 3.

4.

5.

JURISDICTION OF REGULAR COURTS

Jurisdiction over the subject matter - conferred by law; unlike jurisdiction over the parties, CANNOT be conferred on the court by the voluntary act or agreement of the parties. Jurisdiction over the issues of the case - determined and conferred by the pleadings or by agreement during pre-trial or by the parties’ implied consent such as when they fail to object to the admissibility in evidence. Jurisdiction over the res (property/ thing subject of litigation) acquired by the actual or constructive seizure by the court of the thing in question, thus placing it in custodial legis or by provision of law which recognizes in the court the power to deal with the property or subject matter within in its territorial jurisdiction.

Inferior Courts

Courts of Record

The court need not acquire jurisdiction over the res as long as it acquires jurisdiction over the person of the defendant. However, if it cannot acquire jurisdiction over the person of the defendant, it may acquire jurisdiction over the res to continue with the proceedings.

Courts Not of Record Constitutional Courts

Decision is limited to the value of the property if jurisdiction is not acquired over the person of the defendant: while the trial court acquired jurisdiction over the res, its jurisdiction is limited to a rendition of judgment on the res. It cannot extend its jurisdiction beyond the res and issue a judgment enforcing petitioner’s personal liability. In doing so without first having acquired jurisdiction over the person of petitioner, as it did, the trial court violated her constitutional right to due process, warranting the annulment of the judgment rendered in the case. (Biaco

vs. Philippine Countryside Rural Bank) Judicial foreclosure proceedings is quasi in rem: the judicial foreclosure proceeding instituted by respondent PCRB undoubtedly vested the trial court with jurisdiction over the res. A judicial foreclosure proceeding is an action quasi in rem. As such, jurisdiction over the person of petitioner is not required, it being sufficient that the trial court is vested with jurisdiction over the subject matter. (Biaco vs. Philippine Countryside Rural Bank) BAR QUESTION: if the pleading alleged that the claim is more than P400,000, but in the course of the trial, it was proven that the claim is only P200,000. Should the RTC dismiss the case for lack of jurisdiction?



Statutory Courts

Description those competent to decide their own jurisdiction and take cognizance of all kinds of cases Example: RTC those which have no power to decide their own jurisdiction and can only try cases permitted by statute. Example: MTC, Juvenile and Domestic Relations Court (under BP 129, JDRC has been integrated into the RTC to form a branch thereof. those which, under the law, actions may originally be commenced those which have the power to review on appeal the decisions or orders of a lower court those which have the power of review or supervision over another and lower court those which, in relation to another court are lower in rank and subject to review and supervision by another. * now called "lower courts" under the 1987 Constitution. those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. * all inferior courts are now courts of record (prior to RA 6031, they were courts not of record). those which are not required to keep a written record or transcript of proceedings held therein those which owe their creation and existence to the Constitution hence cannot be legislated out of existence or deprived by law of their jurisdiction and powers which were unqualifiedly vested to them by the Constitution. SC and SB only (BUT the better view is that the SB is ONLY a constitutional-mandated court since its creation was by statutory enactment ALTHOUGH its existence is provided for by the Constitution. those which were created, organized and with jurisdiction exclusively determined by law. All courts except SC and Sandiganbayan are considered statutory courts.

1.

SUPREME COURT

1987 Constitution, Art. VIII, Section 5. The Supreme Court shall have the following powers:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. All cases in which the jurisdiction of any lower court is in issue. All criminal cases in which the penalty imposed is reclusion perpetua or higher. All cases in which only an error or question of law is involved. Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. Order a change of venue or place of trial to avoid a miscarriage of justice. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. NOTE: Only appeals from the following are allowed to done directly to the Supreme Court: 1. Court of Appeals; 2. Court of Tax Appeals (en banc); 3. Sandiganbayan; 4. COMELEC; 5. COA; 6. Shariah Appellate Courts. All other bodies, tribunals or courts may file an appeal with the Court of Appeals.

Actions to discipline judges is different from a criminal case filed against the same judge: A criminal case against an attorney or judge is

2. Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and 3. Exclusive appellate jurisdiction over all final judgments, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commission, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, Except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph 4 of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or Appeals must be continuous and must be completed within three (3) months, unless extended by the Chief Justice. (as amended by R.A. No. 7902.) 3.

REGIONAL TRIAL COURT

BP Blg 129, Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions in Metro Manila, where such the value exceeds Fifty thousand pesos (50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (3) In all actions in admiralty and maritime jurisdiction where he demand or claim exceeds One hundred thousand pesos (P100,000.00) or , in Metro Manila, where such demand or claim exceeds Two hundred thousand pesos (200,000.00); (4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Two hundred thousand pesos (200,000.00); (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian Relations as now provided by law; and (8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds One hundred thousand pesos (100,000.00) or, in such other abovementioned items exceeds Two hundred thousand pesos (200,000.00). (as amended by R.A. No. 7691*)

distinct and separate from an administrative case against him. The dismissal of the criminal case does not warrant the dismissal of an administrative case arising from the same set of facts. The quantum of evidence that is required in the latter is only preponderance of evidence, and not proof beyond reasonable doubt which is required in criminal cases. (Office of the Court

Title to, or possession of, real property, or any interest therein: the basis is the assessed value, for determining whether which court has jurisdiction. EXCEPT: quieting of title and removal of cloud under Rule 63, which falls squarely within the jurisdiction of the RTC. (Sabitsana vs. Murtegui)

Administrator vs. Sardido)

Amended Amounts: no longer P100,000 and P200,000. Now, exceeding P300,000 outside Metro Manila; P400,000 in Metro Manila. Applicable to the following cases: 1. Claims for money; 2. Actions purely for damages; 3. Estate proceedings; 4. Cases in admiralty and maritime jurisdictions.

2.

COURT OF APPEALS

BP Blg. 129, Section 9. Jurisdiction. – The Court of Appeals shall Exercise: 1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;



Incapable of Pecuniary Estimation: the claim or the issue is cannot be reduced into an amount. Examples: 1. Annulment or rescission of contract;

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

2. 3.

4.

Specific performance; Cancellation of title – the ultimate relief is the cancellation of the title, the subject is only the title itself; this is different from actions involving title to, or possession of, real property, the jurisdiction of which may be determined by the assessed value; Cancellation of mortgage.

Ruby Shelter case: initially assessed by the clerk of court as incapable of pecuniary estimation. Later on, it was determined that the ultimate result of the case is that title would pass on, not merely for recovery of title (document), but the title to the property itself (ownership). The RTC then assessed filing fees. CA sustained the RTC. The Supreme Court sustained RTC and CA. the petitioner’s complaint involved not only the annulment of the deed of sale but also the recovery of the real properties identified in the documents. In other words, the objective of the petitioner in filing the case were to cancel the deed and ultimately to recover possession. Therefore, the value of the property determines the filing fees. Section 20. Jurisdiction in criminal cases. – Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter. Section 21. Original jurisdiction in other cases. – Regional Trial Courts shall exercise original jurisdiction: (1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and (2) In actions affecting ambassadors and other public ministers and consuls. Section 22. Appellate jurisdiction. – Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The decision of the Regional Trial Courts in such cases shall be appealable by petition for review to the Court of Appeals which may give it due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed. Section 23. Special jurisdiction to try special cases. – The Supreme Court may designate certain branches of the Regional Trial Courts to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice. a.

FAMILY COURTS

RA No. 8369 dated Oct. 28, 1997

The sentence, however, shall be suspended without need of application pursuant to Presidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code"; b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; c) Petitions for adoption of children and the revocation thereof; d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; e) Petitions for support and/or acknowledgment; f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines"; g) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws; h) Petitions for the constitution of the family home; i) Cases against minors cognizable under the Dangerous Drugs Act, as amended; j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and k) Cases of domestic violence against: 1) Women - which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom movement; and 2) Children - which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court. NOTE: Family Courts are creations of law, as distinguished from Special Commercial Courts and Intellectual Property Courts which are created by Supreme Court issuances. b.

INTELLECTUAL PROPERTY COURTS

Section 5. Jurisdiction of Family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:

Supreme Court Administrative Order No. 113-95: Designation of Special Courts for Intellectual Property Rights

a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age or where one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred.

In the interest of an efficient administration of justice and to ensure speedy disposition of cases involving violation of Intellectual Property Rights, the Branches of the Regional Trial Courts, Metropolitan Trial Courts and Municipal Trial Courts in Cities, presently presided over by their respective trial judges as herein below indicated, are hereby specially designated to try and decide cases for violations of Intellectual Property Rights such as, but riot limited to,: 1. Violations of Art. 188 of the Revised Penal Code (Substituting and Altering Trademarks, Trade Names, or Service Marks),



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

2. Art. 189 of the Revised Penal Code (Unfair Competition, Fraudulent Registration of Trade Name, Trademark or Service Mark, Fraudulent Designation of Origin, and False Description), 3. Presidential Decree No. 49 (Protection of Intellectual Property Rights), 4. Presidential Decree No. 87 (An Act Creating-the Videogram Regulatory Board), 5. Republic Act No. 165 "as amended (The Patent Law), and 6. Republic Act 166 as amended' (The Trademark Law) committed within their respective territorial areas: 4.

METROPOLITAN TRIAL COURTS MUNICIPAL TRIAL COURTS IN CITIES MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT COURTS

Section 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in criminal cases. – Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

Section 34. Delegated jurisdiction in cadastral and land registration cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots the where the value of which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts. (as amended by R.A. No. 7691) Section 35. Special jurisdiction in certain cases. – In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges sit. 5.

(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof. (as amended by R.A, No. 7691) Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions; (2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such property shall be determined by the assessed value of the adjacent lots. (as amended by R.A. No. 7691) Jurisdiction of the MTC: 1. RTC cases where the amount is exactly P300,000/P400,000 or less; 2. Small Claims: amount has been increased from P100,000 to P200,000; 3. Ejectment cases: forcible entry and unlawful detainer governed by Rule 70. 4. Family cases where no



SANDIGANBAYAN

PD 1606, Sec. 4. Jurisdiction. The Sandiganbayan shall exercise original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors engineers and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or -controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade'27'and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

1. 2.

In cases where none of the accused are occupying positions corresponding to salary grade '27' or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court and municipal circuit trial court ' as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders or regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1,2,14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

The offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and That the offense is committed in relation to their office. (Serrana vs.

Sandiganbayan) Private Persons in conspiracy with public officers with a salary grade of 27 are also under the jurisdiction of the Sandiganbayan, even after the death of the said public officer: private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of R.A. 3019, in consonance with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto. It is true that by reason of public officer’s death, there is no longer any public officer with whom respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished by such death is the public officer’s personal criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between him and private respondent. The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as in the present case where the public officer has already died, the private person may be indicted alone. (People vs. Henry Go) 6.

COURT OF TAX APPEALS

The Court of Tax Appeals (CTA), created by RA No. 1125, has been held to be a part of the judicial system vested with special jurisdiction to act only on protests of private persons adversely affected by the tax, customs or assessment laws. (Ursal vs. CA)

Jurisdiction: Sec. 7. Jurisdiction. - The CTA shall exercise:

Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had therefore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned." (as amended by RA

No. 8249) NOTE: Sandiganbayan is not a constitutional court, it is a constitutionally mandated court created by law as required by the Constitution. To exercise jurisdiction: 1. What: Crimes enumerated above plus estafa and falsification of documents (see Serrana vs. Sandiganbayan and Gen. Garcia vs.

Sandiganbayan) 2. 3.

Who: any public officer with a salary grade of “27” and such other officers enumerated above. How: in relation to his public office. The public office must be an essential ingredient to the commission of the offense or that the office facilitated the commission of the offense.

a. Exclusive appellate jurisdiction to review by appeal, as herein provided: 1. Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue or other laws administered by the Bureau of Internal Revenue; 2. Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial; 3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction; 4. Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs; 5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; 6. Decisions of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs

Requirements for jurisdiction of the Sandiganbayan:



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

If this Court were to sustain petitioners' contention that jurisdiction over their certiorari petition lies with the CA, this Court would be confirming the exercise by two judicial bodies, the CA and the CTA, of jurisdiction over basically the same subject matter – precisely the split-jurisdiction situation which is anathema to the orderly administration of justice.

which are adverse to the Government under Section 2315 of the Tariff and Customs Code; 7. Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping and countervailing duties under Section 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under Republic Act No. 8800, where either party may appeal the decision to impose or not to impose said duties. b. Jurisdiction over cases involving criminal offenses as herein provided: 1. Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the Bureau of Internal Revenue or the Bureau of Customs: Provided, however, That offenses or felonies mentioned in this paragraph where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than One million pesos (P1,000,000.00) or where there is no specified amount claimed shall be tried by the regular Courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action will be recognized.

A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it effectively, to make all orders that will preserve the subject of the action, and to give effect to the final determination of the appeal. It carries with it the power to protect that jurisdiction and to make the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise of that jurisdiction. 3.

Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or are essential to the existence, dignity and functions of the courts, as well as to the due administration of justice; or are directly appropriate, convenient and suitable to the execution of their granted powers; and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants. Thus, this Court has held that "while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction and for the enforcement of its judgments and mandates.

2. Exclusive appellate jurisdiction in criminal offenses: a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax cases originally decided by them, in their respected territorial jurisdiction. b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over tax cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their respective jurisdiction. c. Jurisdiction over tax collection cases as herein provided: 1. Exclusive original jurisdiction in tax collection cases involving final and executory assessments for taxes, fees, charges and penalties: Provides, however, that collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than One million pesos (P1,000,000.00) shall be tried by the proper Municipal Trial Court, Metropolitan Trial Court and Regional Trial Court. 2. Exclusive appellate jurisdiction in tax collection cases: a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax collection cases originally decided by them, in their respective territorial jurisdiction. b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the Exercise of their appellate jurisdiction over tax collection cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in their respective jurisdiction. (as amended by RA No. 9282)

Section 1 of RA 9282: states that the CTA shall be of the same level as the CA and shall possess all the inherent powers of a court of justice.

(City of Manila vs. Judge Cuerdo) 7.

QUASI-JUDICIAL BODIES

Quasi-judicial bodies are not regular courts. The enumeration under Rule 43 is not exclusive, because every now and then, quasi-judicial bodies are created, mostly under the Executive department, e.g., ERC, HLURB. 8. 9.

QUASI COURTS SHARIA’H COURTS a. b.

c.

APPELLATE – equivalent to Court of Appeals DISTRICT – equivalent to the Regional Trial Courts in rank, which were established in certain specified provinces in Mindanao where the Code of Muslim Personal Laws of the Philippines is being enforced. CIRCUIT

Jurisdiction of Sharia’h District Courts:

CTA has the authority to issue writs of certiorari: 1.

2.

Art. VIII, Sec. 1 of the 1987 Constitution: On the strength of this constitutional provision, it can be fairly interpreted that the power of the CTA includes that of determining whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC in issuing an interlocutory order in cases falling within the exclusive appellate jurisdiction of the tax court. It, thus, follows that the CTA, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in these cases.

Exclusive original jurisdiction over the following: 1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under Presidential Decree No. 1083;

Section 6, Rule 135 of the Rules of Court: provides that when by law, jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer.

3. Petitions for declaration of absence and death and for cancellation and correction of entries in the Muslim Registries mentioned in Title VI, Book Two of Presidential Decree No. 1083;

2. All cases involving disposition, distribution and settlement of the estate of a deceased Muslim, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property;

4. All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations;



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all auxiliary writs and processes in aid of its appellate jurisdiction; Concurrent original jurisdiction over the following: 1. Petitions by Muslims for the constitution of the family home, change of name and commitment of insane person to any asylum; 2. All other personal and real actions not mentioned in paragraph 1(d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer which shall fall under the exclusive original jurisdiction of the Municipal Circuit Courts; and 3. All special civil actions for interpleader or declaratory relief where the parties are Muslims or the property involved belongs exclusively to a Muslim. Appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. It shall decide every case on the basis of the evidence and the records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit. ESTOPPEL BY LACHES: GENERAL RULE: The fundamental rule is that, the lack of jurisdiction of the court over an action cannot be waived by the parties, or even cured by their silence, acquiescence or even by their express consent. Further, a party may assail the jurisdiction of the court over the action at any stage of the proceedings and even on appeal. (Duero vs. CA) EXCEPTION: estoppel by laches: active participation in the proceedings in the court which rendered the order or decision will bar such party from attacking its jurisdiction. (Tijam vs. Sibonghanoy) While an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, active participation in the proceedings in the court which rendered the order or decision, including invoking the court’s authority to grant affirmative relief, effectively estops and will bar such party from attacking its jurisdiction.

(Sps. Gonzaga vs. CA, see also Manila Bankers Life Insurance Corporation vs. Eddy Ng Kok Wei) NOTE STILL: That estoppel must be applied only in exceptional cases, as its misapplication could result in a miscarriage of justice. (Duero vs. CA) The general rule should, however, be, as it has always been, that the issue of jurisdiction may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel. Estoppel by laches, to bar a litigant from asserting the court’s absence or lack of jurisdiction, only supervenes in exceptional cases similar to the factual milieu of Tijam v. Sibonghanoy. To apply the Tijam doctrine, a considerable period must have already elapsed for laches to attach. In applying the principle of estoppel by laches in the exceptional case of Sibonghanoy, the Court therein considered the patent and revolting inequity and unfairness of having the judgment creditors go up their Calvary once more after more or less 15 years. (Figueroa vs. People)

subject matter of the action and the decision sought to be appealed from becomes final and executory. The payment of the docket fees within this period is a condition sine qua non to the perfection of the appeal. The payment of the appellate docket and other lawful fees is not a mere technicality of law or procedure. It is an essential requirement, without which the decision or final order appealed from would become final and executory as if no appeal was filed at all (Antonio Navarro vs. Metropolitan Bank & Trust

Company, see also Saint Louie University, Inc. vs. Cobarrubias) Petition for Certiorari: the Court likewise does not acquire jurisdiction if the docket fees are not paid within the 60 day period for filing a petition for certiorari. (Mercado vs. CA) Sun Insurance case: 1.

2. 3.

When filing of initiatory pleading is unaccompanied by payment, court may allow extension of time for payment but NOT beyond reglementary period to file said pleading. Same rule applies to permissive counterclaims, third-party claims, similar pleadings. When court acquires jurisdiction by filing and payment, BUT judgment later on awards a claim which is not specified in the pleading or if specified, the amount has been left for the determination of court, the additional filing fee shall constitute a lien on the judgment which shall be enforced and collected by the Clerk of Court. (Sun Insurance Office,

Ltd. V. Hon. Maximiano Asuncion, mentioned in Alday vs. FGU Insurance Corporation) No Automatic Dismissal: qualifications to the rule on non-payment of docket fees: although the payment of the prescribed docket fees is a jurisdictional requirement, its non-payment does not result in the automatic dismissal of the case provided the docket fees are paid within the applicable prescriptive or reglementary period. (Suson vs. CA) Notwithstanding the mandatory nature of the requirement of payment of appellate docket fees, we also recognize that its strict application is qualified by the following: 1. first, failure to pay those fees within the reglementary period allows only discretionary, not automatic, dismissal; 2. second, such power should be used by the court in conjunction with its exercise of sound discretion in accordance with the tenets of justice and fair play, as well as with a great deal of circumspection in consideration of all attendant circumstances. (Antonio Navarro vs.

Metropolitan Bank & Trust Company) Not subject to waiver: If the defendant filed an answer but did not raise the non-payment of the docket fees or paid an incorrect amount, it may still be raised at any time. This is because the payment of the filing or docket fees is jurisdictional. As such, it is not subject to waiver as provided under Sec. 1, Rule 9. Until docket fees are paid, no need to file answer: there is obviously no need to file an answer until petitioner has paid the prescribed docket fees for only then shall the court acquire jurisdiction over such claim. (Alday vs. FGU

DOCKET FEES

Insurance)

DOCKET FEES: a pleading is only considered filed upon payment of the correct docket fees. Payment of the docket fees is jurisdictional.

Damages: which are stated in the complaint are included in the computation of the docket fees.

The court cannot acquire jurisdiction over the subject matter of a case, unless the docket fees are paid. And where the filing of the initiatory pleading is not accompanied by payment of the docket fees, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. (Mercado vs. CA)

Lien on the Judgment Award: where the docket fees not paid would constitute a lien on the judgment award, such as when: 1. Interest accrued during the pendency of the case. (Proton case); 2. Award was given by the court even if the same was not originally prayed for.

Appeals: the payment of docket fees within the prescribed period is

Supplemental complaint: a supplement complaint covers events or occurrences that have taken effect after the filing of the pleading sought to be implemented. Filing fees should be paid only for the supplemental complaint for claims not part of the original complaint.

mandatory for the perfection of an appeal. Without such payment, the appeal is not perfected. The appellate court does not acquire jurisdiction over the



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Counter-claims: 1. 2.

Permissive – docket fees are required to be paid for permissive counterclaims. Compulsory – no need to pay for docket fees. In Korea Technologies vs. Lerma, it was held that effective August 16, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC, docket fees are now required to be paid in compulsory counterclaim or cross-claims. However, the above rule has been suspended. As such, as it stands, there is no need to pay docket fees for compulsory counterclaims.

Exemptions granted by the SC: 1.

2.

Legal Aid Chapter of the IBP, subject to two requirements: a. Merits test – the case must have merit; b. Means test – the party does not have capacity to bring the action to court, as such, the party must be an indigent. Unicapital vs. Consing (unusual case) – claim for filing fee was based on “metered” damages. People claim the right to sell properties in behalf of the corporation. They were thus sued for such misrepresentation, for recovery of sum of money, for P2M a month. Defendants claim that no filing fees were paid for the claim. SC: it is allowed. This can be considered as a lien on the judgment award. Since it accrues while the action is pending.

11. in the name of substantial justice and fair play; 12. importance of the issues involved; and 13. exercise of sound discretion by the judge, guided by all the attendant circumstances. Thus, there should be an effort, on the part of the party invoking liberality, to advance a reasonable or meritorious explanation for his/her failure to comply with the rules. (Saint Louis University Inc. vs. Cobarrubias) The Court ruled in Aranas v. Endona, the strict application of the jurisdictional nature of the above rule on payment of appellate docket fees may be mitigated under exceptional circumstances to better serve the interest of justice. It is always within the power of this Court to suspend its own rules, or to except a particular case from their operation, whenever the purposes of justice require it. (Bautista vs. Unangst) DOCTRINE of Exhaustion of Administrative Remedies: before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court’s judicial power can be sought. The premature invocation of a court’s intervention is fatal to one’s cause of action. (UP vs.

Catungal, Jr.) Exceptions:

Environmental Cases: while the Rules require that the docket or filing fees are to be paid at the filing of the complaint to acquire jurisdiction over the case, in environmental cases, the filing fees are deferred until judgment on the case.

Writ of Amparo: there are no docket or filing fees required. Unlike in the Writ of Habeas Data which requires the payment of such fees, unless the party is an indigent.

Actions to recover title to or possession of real property: In computing the docket fees for cases involving real properties, the courts, instead of relying on the assessed or estimated value, would now be using the fair market value of the real properties (as stated in the Tax Declaration or the Zonal Valuation of the Bureau of Internal Revenue, whichever is higher) or, in the absence thereof, the stated value of the same. (Ruby Shelter Builders

and Realty Development Realty Corporation vs. Formaran) Non-payment within the reglementary period; strict compliance; exceptions; While procedural rules are liberally construed, the provisions on

1. 2.

There is estoppel on the part of the party invoking the doctrine; The challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3. There is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4. The amount involved is relatively so small as to make the rule impractical and oppressive; 5. The question involved is purely legal and will ultimately have to be decided by the courts of justice; 6. Judicial intervention is urgent; 7. The application of the doctrine may cause great and irreparable damage; 8. The controverted acts violate due process; 9. The issue of non-exhaustion of administrative remedies has been rendered moot; 10. There is no other plain, speedy and adequate remedy; 11. Strong public interest is involved; and 12. Quo warranto proceedings

reglementary periods are strictly applied, indispensable as they are to the prevention of needless delays, and are necessary to the orderly and speedy discharge of judicial business.

II. RULES 1 TO 5

Viewed in this light, procedural rules are not to be belittled or dismissed simply because their non-observance may have prejudiced a party's substantive rights; like all rules, they are required to be followed.

Pursuant to the provisions of section 5 (5) of Article VIII of the Constitution, the Supreme Court hereby adopts and promulgates the following rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged:

However, there are recognized exceptions to their strict observance, such as: 1. most persuasive and weighty reasons; 2. to relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure; 3. good faith of the defaulting party by immediately paying within a reasonable time from the time of the default; 4. the existence of special or compelling circumstances; 5. the merits of the case; 6. a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; 7. a lack of any showing that the review sought is merely frivolous and dilatory; 8. the other party will not be unjustly prejudiced thereby; 9. fraud, accident, mistake or excusable negligence without the appellant's fault; 10. peculiar, legal and equitable circumstances attendant to each case;



RULES OF COURT

Constitutional Basis for Rules of Court: 1987 Constitution, Art. VIII, Sec. 5(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. RULE 1: GENERAL PROVISIONS

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 1. Title of the Rules. — These Rule shall be known and cited as the Rules of Court. A.

ACTIONS; COMMENCEMENT

Section 3. Cases governed. — These Rules shall govern the procedure to be observed in actions, civil or criminal and special proceedings. (a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be (1) ordinary or (2) special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. (b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.

Action vs. Suit: There is no difference between an action and a suit; but if there is, “action” is generally confined with the proceedings in a court of law, while “suit” is equally applied to prosecutions at law or in equity. However, in the Philippines, there is no such distinction because there are no courts of equity in this jurisdiction. Section 5. Commencement of action. — A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the dated of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.

Significance: of the above provision is for purposes of determining the reglementary period, which is particularly important when the defense of prescription is raised. Filing of complaint by registered mail: is deemed filed from the date it is mailed, not when received. However, if the docket fees are paid on a subsequent date, the date of such payment is deemed the date of filing of the pleading. APPLICABILITY OF RULES: Section 2. In what courts applicable. — These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. APPLICABILITY AS TO CASES: Section 4. In what case not applicable. — These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

Naturalization case: the rule on formal offer of evidence (Rule 132, §34) is not applicable to a case involving a petition for naturalization. The only instance when said rules may be applied is by analogy or suppletorily in such cases is when it is "practicable and convenient.” (Ong Chia vs. Republic)

Section 1. Ordinary civil actions, basis of. — Every ordinary civil action must be based on a cause of action. Section 2. Cause of action, defined. — A cause of action is the act or omission by which a party violates a right of another. The cause of action lies with the defendant, because he is the violator or cause of the “act or omission” which gives rise to the same.

Rule 6, Sec. 3 should thus refer to a plaintiff’s right of action, not cause of action. ELEMENTS of a cause of action are: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2. An obligation on the part of the named defendant to respect or not to violate such right; and 3. An act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages. (Relucio vs. Lopez)

Cause of action that has not ripen yet: not allowed; premature. Even if the cause of action ripened during the pendency of the action. The SC explained that you cannot amend a pleading to give it a cause of action when in the outset it had no cause of action. This cannot be corrected by an amendment. B.

Section 3. One suit for a single cause of action. — A party may not institute more than one suit for a single cause of action. A single act will rise to a single cause of action; whereas two acts or omissions, call for two complaints, etc. SPLITTING OF A SINGLE CAUSE OF ACTION Section 4. Splitting a single cause of action; effect of. — If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. Splitting of a Single Cause of Action is the act of dividing a single cause of action, claim or demand into two or more parts, intending to reserve the rest for another separate action; filing of two complaints for a single cause of action will be a ground for dismissal of one and amendment of the other. Acts should be understood to include a series of transactions.

Purpose of the proscription: 1. 2.

Section 6. Construction. — These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. CIVIL ACTIONS ORDINARY CIVIL ACTIONS RULE2: CAUSE OF ACTION



In order to avoid harassment and vexation to defendant; To obviate multiplicity of suits.

Remedies of defendant: 1. 2.

CONSTRUCTION:

ONE SUIT FOR ONE ACTION

File motion to dismiss on the ground of litis pendentia, if one action is ending and another one is filed from the same cause of action; File motion to dismiss on the ground of res judicata, if there is already a final judgment on one action and another one is instituted based on the same cause of action.

Installments: In a loan payable in installments, non-payment of one installment is a cause of action in itself. Hence, may be raised in separate cases, or alleged in supplemental pleadings in the same case. JOINDER OF CAUSES OF ACTION Section 5. Joinder of causes of action. — A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

(a) The party joining the causes of action shall comply with the rules on joinder of parties; (b) The joinder shall not include special civil actions or actions governed by special rules; (c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and (d) Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. Purpose: to avoid multiplicity of suits.

Section 15. Entity without juridical personality as defendant. — When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the name and addresses of the persons composing said entity must all be revealed. Summons, upon the entity may be served upon any one of these persons or upon the person in charge thereof. The individual members cannot sue under the name of the entity but may, however, may sue in their own name.

Permissive: joinder of causes of action is permissive, not mandatory. As such, it is upon the plaintiff on whether he wants to join the causes of action in one case or not. Compliance with the requirements of joinder of parties: necessary that the right of relief from said (1) causes of action should arise out of the same transaction or series of transactions and (2) a question of law and fact common to all the plaintiffs or defendants may arise in the action. No special civil actions: only causes of action for ordinary civil actions may be joined. This is because special civil actions are governed by special rules that may not be allowed in regular proceedings, e.g., certiorari, where the court does not necessarily acquire jurisdiction over the person of the respondent by summons.

Section 2. Parties in interest. — A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

A party, not a real party in interest is included: maybe the subject of a motion to dismiss on the ground that the pleading asserting the claim does not state a cause of action. Direct Injury Test Transcendental Importance Far-reach implication test

Example: Collection of sum of money with foreclosure of real estate mortgage covering another loan.

REMEDY FOR MISJOINDER: Should the plaintiff include the special civil action, is this a ground for dismissal? No. Sec. 6 of Rule 2 provides: Section 6. Misjoinder of causes of action. — Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately.

Section 3. Representatives as parties. — Where the action is allowed to be prosecuted and defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real property in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

As such, the proper remedy is to file for severance.

BAR QUESTION: Distinguish representative party and a class suit.

Jurisdiction: shall be with the RTC who has jurisdiction or venue over one of the causes of action, even if the other is under the jurisdiction of the MTC. For purposes of determining jurisdictional amount, par. (d) above provides that in recovery of money, the aggregate amount shall be the test of jurisdiction.

ANSWER: Improper question. A class suit is a “suit” whereas a representative party is a “party” to the suit. No distinguishing or common ground.

SPLITTING VS. JOINDER OF CAUSES OF ACTION: In joinder, several acts or omissions are put in one complaint, in splitting, there was only one act or omission, where only one complaint should be filed, but were separated.

A parties in a class suit are those under a common interest in a question of law or fact that it would be impractical to bring them all to court; whereas class suit is one where the parties in interest are so numerous that it is impractical to bring them all to court.

Impracticality refers not only to physical but also to procedure, e.g., filing of the complaint.

JOINDER OF CAUSES OF ACTIONS (Rule 2, Sec. 5) VS. PARTIES (Rule 3, Sec. 6): the latter refers to multiplicity of parties, while the former refers to multiplicity of causes of actions, where only one action is filed.

Representative party, on the other hand, is one who is not a party in interest but he represents a party in interest, e.g., trustee in an express trust, administrator/executor of an estate, guardians ad litem.

RULE 3: PARTIES TO A CIVIL ACTION C.

PARTIES TO A CIVIL ACTION

Section 1. Who may be parties; plaintiff and defendant. — Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) — party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counter-claim, the cross-defendant, or the third (fourth, etc.) — party defendant.

Section 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law.

Exceptions: 1. 2. 3. 4.

Crime committed by one spouse; Administrative case against a spouse in relation to the exercise of one’s profession; Suit of one spouse against another; If there is judicial separation of property, or if the subject of the case is the exclusive property of one spouse.

Entity without juridical personality: cannot sue as such entity, but may be sued:



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 5. Minor or incompetent persons. — A minor or a person alleged to be incompetent, may sue or be sued with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. JOINDER OF PARTIES Section 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. INDISPENSABLE AND NECESSARY PARTIES Section 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. Section 8. Necessary party. — A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. Indispensable Party is one without whom there can be no final determination of the case. Necessary Party is one without whom there can be no complete determination of the case. Accordingly, the case may proceed. However, the reasons for the non-inclusion of a necessary party must be stated in the complaint, otherwise, it may be deemed that the claim against him has been waived.

See Relucio vs. Lopez under cause of action. Effect of not impleading an indispensable party: if one indispensable party is not brought to court the judgment of the court is null and void, not only as to those who were not brought in the complaint, but also those who were brought in the case.

accorded in the suit even without their participation, since the suit is presumed to have been filed for the benefit of all co-owners. (Navarro vs. Escobido) Note, however, that when a co-owner is sued as a principal (whether in his own or representative capacity) in an agency to sell the property, he may be sued even without the other co-owners. (De Castro vs. CA)

Judicial Partition: however, if the case is for judicial partition, all co-owners are indispensable parties. Such that, failure to implead one, will result in the judgment rendered being void. Effect of not impleading a NECESSARY party: Section 9. Non-joinder of necessary parties to be pleaded. — Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. Remedy for Non-Joinder of indispensable or necessary party: is to ask for their inclusion NOT DISMISSAL. The court may, upon motion, or in its own initiative order that the other parties be impleaded, as provided under Sec. 11: Section 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. However, after such order is given, and the plaintiff refuses or fails to implead the: 1.

Moreover, if an indispensable party was not impleaded and judgment was rendered. Such judgment is void. Note that the case was not dismissed, but the judgment was void for failure to implead an indispensable party.

The joinder of indispensable parties is mandatory and courts cannot proceed without their presence. Whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the trial and order the inclusion of such party. (De Castro vs.

CA)

2.

Solidary liability does not connote being indispensable parties: solidarity does not make a solidary obligor an indispensable party in a suit filed by the creditor. Article 1216 of the Civil Code says that the creditor `may proceed against anyone of the solidary debtors or some or all of them simultaneously.’ (De Castro vs. CA)

Co-owners: In a co-ownership, the co owners are indispensable parties when they are impleaded as defendants, but if they file a case as plaintiffs, even one of the co-owners can file it without including the other co-owners. This is because the co-owner(s) who bring the suit is presumed to bring it for an in behalf of the other co-owners. In suits to recover properties, all co-owners are real parties in interest. However, pursuant to Article 487 of the Civil Code and relevant jurisprudence, any one of them may bring an action, any kind of action, for the recovery of co-owned properties. Therefore, only one of the co-owners, namely the coowner who filed the suit for the recovery of the co-owned property, is an indispensable party thereto. The other co-owners are not indispensable parties. They are not even necessary parties, for a complete relief can be



Indispensable party, the court may dismiss the complaint/petition for the petitioner/plaintiff’s failure to comply therefor, as provided above.

Necessary party, the non-inclusion is not a ground for dismissal, but the claim against the necessary party is deemed waived. Moreover, if a judgment has been rendered despite non-inclusion, such judgment is valid.

Strangers to a case: No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution and demolition issued pursuant thereto. (Orquiola

vs. CA) CLASS SUIT Section 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

party in interest shall have the right to intervene to protect his individual interest.

Requisites: 1.

The controversy is one of common or general interest to many persons. Examples: a. Residents of a subdivision whose right of way was blocked. Their interests are common – i.e., access to the road; b. Oposa vs. Factoran – the common or general interest is the intergenerational responsibility to protect ecology. However, under the Rules on Environmental Laws, this is now known as a Citizen’s Suit. There is no common or general interest: a. In a vehicular mishap, the victims of the car crash, where some died, some were injured, some were traumatized, cannot sue as a class since they do not have a common or general interest. b. In a ship that sank, the victims are doctors, lawyers and some common people – they do not have common interests. They may, however, sue by joinder of parties.

2. 3.

The persons are so numerous that it is impracticable to join all the parties and to bring them all to court; There is adequate representation: a. Whether the interest of the named party is co-extensive with the interest of the class; b. The proportion of those made as a party in relation to the total number of persons in the class; c. Other factors bearing on the ability of the named party to speak for the rest of the class.

Section 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. DEATH OR SEPARATION OF PARTY Section 16. Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.

survive, the injury complained of is to the person, the property and rights of property affected being incidental. (Carabeo vs. Sps. Dingco)

Duty of the Lawyer: to inform the court within 30 days after notice of such death and to name a legal representative. Duty of the Court: to issue an order requiring the substitute or legal representative to appear and order substitution.

Effect on judgment: both of the above duties are necessary for proper substitution. Otherwise, the judgment rendered without a valid substitution may be void. Except, if the legal representative/s actively participated. Note that the requirement of substitution is for purposes of due process, not for jurisdiction.

A formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the case, and present evidence in defense of the deceased. These actions negate any claim that the right to due process was violated. (Sps. Dela Cruz vs. Joaquin)

Substitution is not a matter of jurisdiction but of due process: the rule on the substitution by heirs is not a matter of jurisdiction, but a requirement of due process. Thus, when due process is not violated, as when the right of the representative or heir is recognized and protected, noncompliance or belated formal compliance with the Rules cannot affect the validity of a promulgated decision. Mere failure to substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court’s decision. The alleging party must prove that there was an undeniable violation of due process. (Sps. Dela Cruz vs. Joaquin) Legal Representative: an heir, executor or administrator. Section 17. Death or separation of a party who is a public officer. — When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard.

Requisites: 1. 2. 3.

The public officer is a party in an action in his official capacity; He dies, resigns or otherwise ceases to hold office; The successor adopts or continues or threatens to adopt or continue to adopt or continue the action of the predecessor.

If it cannot be determined that the successor will adopt or continue to adopt the acts of his predecessor, he must be notified before substitution can be made. TRANSFER OF INTEREST Section 19. Transfer of interest. — In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

Actions of the court: Applicability: of this rule is only if the action survives the death of the party. The question as to whether an action survives or not depends on the nature of the action and the damage sued for.

1. 2. 3.

The court may validly render judgment even without substitution or impleading the transferee; The court may require that the transferee be impleaded; The court may require that the transferee be substituted.

In the causes of action which survive, the wrong complained of affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

PROBLEM: During his lifetime and the pendency of the case, A transferred his property to B. A continued to be a party to the case and died during its pendency. Which provision will apply? ANSWER: Sec. 16. Transfer of interest can only be effected during the lifetime of the party. Thus, the proper party to be substituted is either the heir, executor or administrator and not the transferee of the property. Section 18. Incompetency or incapacity. — If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. CONTRACTUAL MONEY CLAIMS Section 20. Action and contractual money claims. — When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Action for contractual money claims survives the death of the defendant and such death is not a ground for dismissal, it shall continue until entry of final judgment. A favorable judgment obtained by the plaintiff shall be proceeded against in accordance with Rule 86 of the Rules of Court: Claims against the estate.

Claim must be based on a contract: As such, if for example, it arise from quasi-delict, it shall not fall within the provisions of the above.

Section 14. Unknown identity or name of defendant. — Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner heir devisee, or by such other designation as the case may require, when his identity or true name is discovered, the pleading must be amended accordingly. Section 21. Indigent party. — A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose.

Indigent Party: is defined under Sec. 18, Rule 141 as that party whose income or that of his immediate family does not exceed double the monthly minimum wage and does not own any real property with a fair market value exceeding P300,000. The court does not require to exercise discretion. If the party falls within such definition, he is considered an indigent party. (Sps.

Algura vs. Local Government of Naga) Claims which may be proceeded against the estate: 1. 2. 3. 4.

Funeral Expenses; Expenses of last illness;

Judgment for money arising from contract, whether express or implied; Damages. (Rule 86, Sec. 5)

All other claims may be filed under Rule 87: Action By or Against Executor or Administrator. NOTE: 1. Sec. 20, Rule 3 above comes within the claims against the estate under no. 3 in the above enumeration; 2. The favorable judgment obtained must be filed as a claim against the estate, which presupposes that settlement thereof has already begun. Otherwise, the judgment creditor may initiate settlement proceedings, as such. 3. Once filed and approved, must await final settlement of estate and its distribution.

If one of the above is not met, the indigency test may be resorted to, under Sec. 21, Rule 3, i.e., that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. The court may declare him indigent. As an indigent, the party is: 1. Not required to pay docket fees for the time being but in case of a favorable decision, such fees shall be a lien on the judgment award; 2. Not required to pay for the copy of the transcripts of stenographic case. Rule 141, Sec. 19 Section 22. Notice to the Solicitor General. — In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or a representative duly designated by him.

Compared with Sec. 16: 1. 2. 3.

Applies only if the one who dies is the defendant; The case concerns sum of money arising from contract; No substitution; the case will continue against the estate of the defendant.

OTHER PROVISIONS UNDER RULE 3: Section 10. Unwilling co-plaintiff. — If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. Section 13. Alternative defendants. — Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.



RULE 4: VENUE D.

VENUE OF ACTIONS; REAL ACTIONS; PERSONAL ACTIONS

Section 1. Venue of real actions. — Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated.

Venue of Real Actions is the place where the property is located. However, not all actions which may involve real property may be considered as “real actions” for purposes of the venue, what is controlling, is that the actions affect “title to or possession of” real property.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Example, the following are personal actions: 1. Action to recover purchase price of the land (Garcia vs. Velasco) 2. Action to compel mortgagee to accept payment (Hernandez vs. Rural

There is a specific law or rule providing for the venue, but the parties stipulated on the venue: the law or rule will apply. Basic is the rule that stipulations must not be contrary to law.

Bank of Lucena) 3.

An action filed by the husband for damages, based on the wife’s adulterous acts, and for his share in the fruits of the conjugal partnership, with a prayer for injunction to restrain her from selling real property belonging to the conjugal partnership. (De Guzman vs. Genato)

Section 2. Venue of personal actions. — All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

General Rule: Sections 1 and 2 provide for the basic rules on venue of actions or the default rules. Note that the general rule for venue of civil actions may be waived or agreed upon or may be otherwise fixed by law or rules, as provided under Sec. 4 of Rule 4.

Venue of other actions as set by the Rules: 1. 2. 3.

Adoption – resident of the petitioner; Guardianship – resident of the ward; Quo Warranto – resident of the respondent;

Parties’ Agreement as to venue: must contain exclusivity for the agreement to apply. Otherwise, the general rule shall be applicable.

Residence as used under Sec. 2 above, should mean his personal, actual or physical habitation or his actual residence or place of abode (Fule, et al. vs. CA) not his permanent home or residence. (Koh vs. CA) Improper Venue as ground for dismissal: improper venue not raised as a ground in a motion to dismiss can still be raised as an affirmative defense and not considered waived. Section 3. Venue of actions against nonresidents. — If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found.

RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS Section 1. Uniform procedure. — The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure.

Ordinary Procedure vs. Summary Procedure: ORDINARY PROCEDURE Complaint/Answer Answer to be filed generally within 15 days Motion for Extension to File Answer is allowed Plaintiff may file a Reply although not mandatory Pre-trial/Mediation/Judicial Dispute Resolution Pre-trial under Rule 18, Sec. 1, the plaintiff has the duty to file an exparte motion to set the case for pre-trial “promptly”; in 2004, in the guidelines issued by the SC on pre-trial and modes of discovery, within 5 days from the filing of the reply or the last pleading as confirmed in the Lapu Lapu case. A motion to dismiss on any of the grounds under Rule 16 may be filed

A petition for certiorari may be filed against interlocutory orders, such as denial of a motion to dismiss

Section 4. When Rule not applicable. — This Rule shall not apply. (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.

Words of exclusivity: There can be a valid venue stipulation concerning real property provided, there are words of exclusivity, the stipulation concerning venue is valid even if it concerns title to, possession of or interest in, real property. While they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them.

Examples: "only," "solely," "exclusively in this court," "in no other court save —," "particularly," "nowhere else but/except —," or words of equal import were stated in the contract. (Pacific Consultants International Asia, Inc. vs. Schonfeld)

Trial – presentation of testimonial evidence subject to the Judicial Affidavit Rule covering direct examination Within 60 days, submitted for decision Motion for reconsideration may be filed against a judgment

Petition for relief may be filed against an executory order

SUMMARY PROCEDURE Complaint/Answer Answer to be filed within 10 days Said motion is a prohibited pleading Reply is a prohibited pleading Preliminary Conference Preliminary Conference takes place within 30 days from the filing of the last pleading

Motion to Dismiss is a prohibited pleading, except if the ground is lack of jurisdiction over the subject matter or non-compliance with barangay conciliation proceedings Petitions for certiorari, prohibition or mandamus are prohibited pleadings EXCEPTIONS, certiorari was granted: * case of Bayog – a farmer who had tuberculosis was not able to file an answer, a petition for relief was granted even if it is a prohibited pleading, due to the special circumstance; * case of Go – the preliminary conference was held in abeyance No trial in the strict sense. Parties are only required to submit judicial affidavits or position paper. Within 30 days, submitted for decision Motion for reconsideration of a judgment is a prohibited pleading (but does not include an MR against an interlocutory order). As such, the remedy is to file an ordinary appeal. Prohibited pleading subject to the exception in the case of Bayog

MTC to RTC appeal: the RTC can review based on the entire records of the case. (Rule 40, Sec. 7 and Sec. 18 of Rule 70) As such, the RTC may rule upon matters not originally raised on appeal.



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

SUMMARY PROCEDURE VS. SMALL CLAIMS SUIT SUMMARY PROCEDURE Lawyers may be present to litigate Terms: Complaint/Answer

SMALL CLAIMS SUIT No lawyer is allowed to appear Terms: Application/Reply

Section 2. Meaning of terms. — The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. III. RULES 6 TO 9 RULE 6: KINDS OF PLEADINGS Section 1. Pleadings defined. — Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. Section 2. Pleadings allowed. — The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply. KINDS OF PLEADINGS:

Criminal Proceedings: in criminal proceedings: 1. 2. 3. 4.

Complaint – Complaint Affidavit; Answer – Counter Affidavit; Reply – Rejoinder; Reply to a Rejoinder – Sur Rejoinder.

But the above are administrative in nature, because they are not in filed in court but with the fiscal’s office. After finding probable cause, the fiscal will file an information. Exceptions: when may a criminal action be filed directly with the

court: 1.

2.

Under Rule 110, Sec. 1 (2), where the penalty for the offense is less than 4 years, two months and one day or that which does not require a preliminary investigation as provided under Rule 112, Sec. 1; When a person is lawfully arrested without a warrant, and the inquest prosecutor is unavailable, the complaint-affidavit may be filed directly with the court by the complainant or the peace officer.

COMPLAINT Section 3. Complaint. — The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. ANSWER Section 4. Answer. — An answer is a pleading in which a defending party sets forth his defenses. DEFENSES: NEGATIVE AND AFFIRMATIVE

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

Negative defense: must be raised through a specific denial in accordance with Rule 8, Sec. 10. Otherwise, a general denial, or that which denies the allegations but does not state the truth of the matter, may be regarded as an admission. From there, the plaintiff may move for Summary Judgment or Judgment on the Pleadings, as the case may be. COUNTERCLAIMS Section 6. Counterclaim. — A counterclaim is any claim which a defending party may have against an opposing party.

Different from the Answer: a counterclaim is the claim of the defendant against the plaintiff, so that the plaintiff may be declared in default with respect to the counterclaim if he does not file an answer thereto. Section 7. Compulsory counterclaim. — A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counter-claim may be considered compulsory regardless of the amount. The criteria or tests that may be used in determining whether a counterclaim is compulsory or permissive, summarized as follows: 1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim? 4. Is there any logical relation between the claim and the counterclaim?

(Valencia v. Court of Appeals) Another test, applied in the more recent case of Quintanilla v. Court of Appeals, is the "compelling test of compulsoriness" which requires "a logical relationship between the claim and counterclaim, that is, where conducting separate trials of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court." (Alday vs. CA)

Jurisdiction: must be with the same court, except when the original action is with the RTC. Example: A filed a complaint for sum of money amounting to P150k against B. B filed a counterclaim in the amount of P500k. 1. 2.

Section 5. Defenses. — Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.



3.

The counterclaim should be dismissed since the jurisdiction thereof is with the RTC and not with the MTC. However, if the original action is P500k and the counterclaim is P150k, there is no dismissal, since the original action is with the RTC, the latter may then take cognizance of the counterclaim. The same is true if the counterclaim interposed arises out of an Employer-Employee relationship, or intracorporate disputes, which should be filed with the NLRC or the Special Commercial Courts, respectively.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 8. Cross-claim. — A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. Section 9. Counter-counterclaims and counter-crossclaims. — A counter-claim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant.

Counter-claim not raised in the answer: is considered waived under Rule 9, Sec. 2. Rule 9, Section 2. Compulsory counterclaim, or crossclaim, not set up barred. — A compulsory counterclaim, or a crossclaim, not set up shall be barred.

Exception to the above rule: Rule 11, Sec. 10: “When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.” The counterclaim may be set-up with leave of court through amendment. Money Claim: not raised within the time prescribed in estate proceedings may only be prosecuted as a counter-claim for a case filed by an executor or administrator against the creditor. REPLY Section 10. Reply. — A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint.

When not necessary: when the answer consists only of denials, these are deemed controverted. But if the answer raises or allege facts in denial or avoidance, a reply should be filed to specifically deny the same. Denials will be a matter of evidence and no longer a matter of pleading.

Different from counterclaim: a reply is an answer to an Answer, while the Answer to a counterclaim is the answer to the claim of defendant.

The bringing of a third-party defendant is proper if he would be liable to the plaintiff or to the defendant or both for all or part of the plaintiff's claim against the original defendant, although the third-party defendant's liability arises out of another transaction. The defendant may implead another as third-party defendant: (a) On an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other relief; (b) On the ground of direct liability of the third-party defendant to the plaintiff; or (c) The liability of the third-party defendant to both the plaintiff and the defendant. (ACDC vs. CA)

Intra-Corporate

Dispute: the summary nature of the proceedings governed by the Interim Rules, and the allowance of the filing of third-party complaints is premised on one objective, the expeditious disposition of cases. Moreover, following the rule of liberal interpretation found in the Interim Rules, and taking into consideration the suppletory application of the Rules of Court under Rule 1, Sec. 2 of the Interim Rules, the Court finds that a third-party complaint is not, and should not be prohibited in controversies governed by the Interim Rules. The logic and justness of this conclusion are rendered beyond question when it is considered that Sy Tiong Shiou and Juanita Tan are not complete strangers to the litigation as in fact they are the moving spirit behind the filing of the principal complaint for accounting and damages against the Spouses Sy. (Sy-Tiong vs.

Sy Chim) Section 12. Bringing new parties. — When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. Section 13. Answer to third (fourth, etc.)—party complaint. — A third (fourth, etc.) — party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) — party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff.

Leave of Court: is not required for counterclaims, either permissive or compulsory, even cross-claim. However, a third-party complaint requires leave of court before it is filed. Filing Fees: is required to be paid for permissive counter-claims, cross-claims and third-party complaint, but not in a compulsory counter-claim.

Certification Against Forum Shopping: is required in permissive counter-

than a reply to seek additional/new relief not raised in the complaint.

claims but not in a compulsory counter-claim, this is because a permissive counter-claim is in itself a separate case, unlike a compulsory counter-claim, where the court already acquired jurisdiction over the defendant therein (plaintiff in the case).

THIRD PARTY COMPLAINT AND REPLY THERETO

Such certification is likewise required for a third-party complaint.

Matters raised in the answer is a basis for a new/additional cause of action: the plaintiff has the option to file a supplemental complaint rather

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

Purpose: the defendant wants the third-party, in case the former loses the case, to contribute, indemnify or subrogate the defendant to the claim.

Applicability: The test to determine whether the claim for indemnity in a third-party complaint is, whether it arises out of the same transaction on which the plaintiff's claim is based, or the third-party plaintiff's claim, although arising out of another or different contract or transaction, is connected with the plaintiff's claim.



RULE 7: PARTS OF A PLEADING Section 1. Caption. — The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. Section 2. The body. — The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (n)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

(a) Paragraphs. — The allegations in the body of a pleading shall be divided into paragraphs so numbered to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a) (b) Headings. — When two or more causes of action are joined the statement of the first shall be prefaced by the words "first cause of action,'' of the second by "second cause of action", and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (4) (c) Relief. — The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6) (d) Date. — Every pleading shall be dated. Section 3. Signature and address. — Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

Signature: all pleadings must be signed by either the party or his counsel. However, once there is a counsel, he must ALWAYS sign. This is because notice to the party is not notice to the counsel, but a notice to the counsel is notice to the party. Lawyer’s Signature: signifies that 1. 2. 3.

he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING Section 4. Verification. — Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.

1. 2. 3. 4. 5.

Complaint under the Alternative Dispute Resolution Law; Complaint in Ejectment Cases; Complaint in ordinary procedures praying for a provisional remedy; Petition for Review as an appeal; Petition for Certiorari under Rule 65.

Who should verify: the party itself. Otherwise, the case may be dismissed. If there are more than one, all should verify. If only one signed, it is generally not valid. However, the court, in a number of cases allowed such verification as substantial compliance if there is commonality of interest. Where the petitioners are immediate relatives, who share a common interest in the property subject of the action, the fact that only one of the petitioners executed the verification or certification of forum shopping will not deter the court from proceeding with the action. It is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification; and when matters alleged in the petition have been made in good faith or are true and correct (Medado vs. Heirs of Consing) Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. Forum shopping is the act of a party litigant against whom an adverse judgment has been rendered in one forum seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause or supposition that one or the other court would make a favorable disposition.

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief.

Forum shopping happens when, in the two or more pending cases, there is identity of parties, identity of rights or causes of action, and identity of reliefs sought. Where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other, there is forum shopping. (In Re: Reconstitution of Transfer Certificates of

A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading.

Title Nos. 303168 and 303169 and Issuance of Owner’s Duplicate Certificates of Title In Lieu of Those Lost, Rolando Edward G. Lim cited in the case of Alma Jose vs. Javellana)

Purpose: the verification requirement is simply intended to secure an

Certiorari and Appeal questioning different orders do not constitute forum shopping: For forum shopping to exist, both actions must involve the

assurance that the allegations in the pleading are true and correct, and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. (Medado vs. Heirs of Consing)

Verification of the party: signifies that the party: 1. 2.

has read the pleading; and that the allegations therein are true and correct of his knowledge and belief.

Examples of pleadings required to be verified:



same transaction, same essential facts and circumstances and must raise identical causes of action, subject matter and issues. Clearly, it does not exist where different orders were questioned, two distinct causes of action and issues were raised, and two objectives were sought. The appeal and the petition for certiorari actually sought different objectives. In his appeal in C.A.-G.R. CV No. 68259, Javellana aimed to undo the RTC’s erroneous dismissal of Civil Case No. 79-M-97 to clear the way for his judicial demand for specific performance to be tried and determined in due course by

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

the RTC; but his petition for certiorari had the ostensible objective "to prevent (Priscilla) from developing the subject property and from proceeding with the ejectment case until his appeal is finally resolved," as the CA explicitly determined in its decision in C.A.-G.R. SP No. 60455. Nor were the dangers that the adoption of the judicial policy against forum shopping designed to prevent or to eliminate attendant. The first danger, i.e., the multiplicity of suits upon one and the same cause of action, would not materialize considering that the appeal was a continuity of Civil Case No. 79-M-97, whereas C.A.-G.R. SP No. 60455 dealt with an independent ground of alleged grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC. The second danger, i.e., the unethical malpractice of shopping for a friendly court or judge to ensure a favorable ruling or judgment after not getting it in the appeal, would not arise because the CA had not yet decided C.A.-G.R. CV No. 68259 as of the filing of the petition for certiorari. (Alma Jose vs. Javellana)

Who should certify in case of multiple parties: the signature of only one of the petitioners in the certification against forum shopping substantially complied with [the] rules because all the petitioners share a common interest and invoke a common cause of action or defense. (HLC Construction and

Development Corporation v. Emily Homes Subdivision Homeowners Association) Difference of non-compliance between verification and certification: Verification is a formal requirement, whereas certification against forum shopping is a substantial requirement. As such, non-compliance with the former may be corrected by a liberal court through a belated verification. Whereas non-compliance with the requirement of certification is not correctible by amendment.

Non-Compliance with Forum Shopping Certification: 1. 2.

Forum shopping exists even if one action is for rescission of a contract of sale and the other one is for its enforcement: It does not

3.

even matter that one action is for the enforcement of the parties' agreements, while the other action is for the rescission thereof. In the similar case of Victronics Computers, Inc. v. RTC, Branch 63, Makati, we discussed:

4.

Civil Case No. 91-2069 actually involves an action for specific performance; it thus upholds the contract and assumes its validity. Civil Case No. 91-2192, on the other hand, is for the nullification of the contract on the grounds of fraud and vitiated consent. While ostensibly the cause of action in one is opposite to that in the other, in the final analysis, what is being determined is the validity of the contract. x x x Thus, the identity of rights asserted cannot be disputed. Howsoever viewed, it is beyond cavil that regardless of the decision that would be promulgated in Civil Case No. 91-2069, the same would constitute res judicata on Civil Case No. 912192 and vice versa. (emphasis supplied) The test of identity of causes of action lies not in the form of an action but on whether the same evidence would support and establish the former and the present causes of action. (Casil vs. CA cited in

Medado vs. Consing) Which case should be dismissed: the relevant factors that courts must consider when they have to determine which case should be dismissed, given the pendency of two actions, to wit: (1) The date of filing, with preference generally given to the first action filed to be retained; (2) Whether the action sought to be dismissed was filed merely to pre-empt the latter action or to anticipate its filing and lay the basis for its dismissal; and (3) Whether the action is the appropriate vehicle for litigating the issues between the parties. (Medado vs. Consing)

Contents of the Certification: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) If there is such other pending action or claim, a complete statement of the present status thereof; and (c) If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

NO CERTIFICATION: dismissal without prejudice; FALSE CERTIFICATION: dismissal with prejudice; indirect contempt of court without prejudice to the administrative or criminal actions; NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS: dismissed with prejudice; indirect contempt of court without prejudice to the administrative or criminal actions; WILLFUL AND DELIBERATE FORUM SHOPPING: summary dismissal WITH prejudice and shall constitute direct contempt as well as cause for administrative sanctions.

THREE WAYS BY WHICH FORUM SHOPPING MAY BE COMMITTED: 1. Multiple cases, all pending, with the same prayer; 2. Multiple cases, based on the same cause of action, with the same prayer, and there is a judgment on the merits on one – res judicata; 3. Multiple cases, identical causes of action, varying prayers – splitting cause of action. (Chua vs. Metrobank) EXAMPLE; VERIFICATION: “I, pedro santos, is the plaintiff in the above entitled case. I caused the preparation of the foregoing complaint. I have read the allegations therein and the same are true and correct of my personal knowledge.” EXAMPLE: CERTIFICATION: “I, Predo santos, the plaintiff in this case state and depose, that I have not filed any other case of this nature before any court, tribunal, body or agency; that there is no pending case similar to this before any court, tribunal, body or agency; that should I come to know of any I will inform the honorable court within 5 days from notice thereof.”

Writ of Execution: even if the pleading was worded as a “petition”, it is a mere motion which is an incident of the case which does not require a certification of non-forum shopping. Such certification is required only for initiatory pleadings. RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS Section 1. In general. — Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated.

Evidentiary matters: are not required to be stated in the pleading Malice/intent: can be through general averments, since they cannot be alleged with particularity because they are conditions of the mind.

Not jurisdictional but mandatory: such that failure to comply with verification and certification requirements is actionable against the one who cause non-compliance.

Who should sign for juridical entities: the established rule is that it must be executed by the plaintiff or any of the principal parties and not by counsel.

(Commission on Appointments vs. Paler)



Section 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 3. Conditions precedent. — In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. Section 4. Capacity. — Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of person that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. Section 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally. Section 6. Judgment. — In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. ACTIONABLE DOCUMENTS Section 7. Action or defense based on document. — Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.

Actionable documents: not all documents are actionable, only those upon which an action or a defense is based, e.g., promissory note as a basis for collection of a sum of money. How to use: 1. 2.

State the substance of the document in the pleading, in verbatim; and attach a copy of the document in the pleading; State the text of the document, in verbatim, in the pleading. Attaching a copy of the document is not stated in the provision for this mode but in practice, attaching a copy is still made.

Section 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.

Denial and effect of failure thereof: denial must be under oath, i.e., the defendant did not sign the document or that his signature was forged. Otherwise, there is an admission as to the genuineness and due execution. In general, answering an initiatory pleading, does not require a verification. But if the complaint made use of actionable documents, the answer must be under oath, i.e., it must be verified. If the actionable document is in an Answer, the reply should be verified to deny specifically the document under oath. The truth as to the statements therein may still be contested, since this is not part of the genuineness and due execution of the document. What is being admitted is that the document is not authentic and not spurious. The admission of the due execution and genuineness of a document simply means that "the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered; and that any



formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. When the law makes use of the phrase 'genuineness and due execution of the instrument' it means nothing more than that the instrument is not spurious, counterfeit, or of different import on its face from the one executed.” (Benguet Exploration Inc.

vs. CA) The 1. 2. 3.

admission covers: Existence of the document; It was properly executed; Signatures therein are authentic.

As such, during trial, the one presenting the document need not authenticate the document since its genuineness and due execution have been admitted.

Exceptions: 1. 2.

When the adverse party does not appear to be a party to the instrument; or When compliance with an order for an inspection of the original instrument is refused.

Section 9. Official document or act. — In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. SPECIFIC DENIAL Section 10. Specific denial. — A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the complaint, he shall so state, and this shall have the effect of a denial.

Purpose: of requiring respondents to make a specific denial is to make them disclose facts which will disprove the allegations of petitioner at the trial, together with the matters they rely upon in support of such denial. Our jurisdiction adheres to this rule to avoid and prevent unnecessary expenses and waste of time by compelling both parties to lay their cards on the table, thus reducing the controversy to its true terms. (Republic vs. Sandiganbayan)

Three Kinds: 1.

2.

3.

Specific Denial – specifying the allegation of fact which is not admitted and setting forth the substance of the matters upon which the denial is based; Qualified Denial – denying only a part and specifying which parts are denied and setting forth the substance of matters upon which the denial is based and specifying matters which are admitted; Lack of knowledge – the party must so state and such shall have the effect of denial. However, lack of knowledge is NOT applicable to matters which are within the personal knowledge of the party; the denial should have positively stated how it was that they were supposedly ignorant of the facts alleged. Otherwise, the same may be considered a negative pregnant. (see Republic vs. Sandiganbayan)

NEGATIVE PREGNANT: a denial pregnant with admission. Example: “We don’t have 11 deposit accounts in Switzerland” denies not having 11 deposit accounts but admits that there may be more or less than 11, and thus admits that there are swiss accounts. (Republic vs. Sandiganbayan)

Simple declarative statements; NO negative pregnant: “B specifically denies that he borrowed P100k from A” – there is no negative pregnant because the allegation is a simple declarative statement. Compound complex sentence: “B specifically denies that he borrowed P100k when the latter was on his way to the market” – there is denial as to WHEN

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

B borrowed from A, but there is admission that B borrowed money from A on some other time.

Denial by lack of knowledge: when the fact alleged is within the knowledge of the defendant, the same is considered a negative pregnant. (see Republic vs. Sandiganbayan) Failure to specifically deny: the matters not specifically denied are deemed admitted under Section 11, to wit: Section 11. Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. Section 12. Striking out of pleading or matter contained therein. — Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom.

be set aside on such terms and conditions as the judge may impose in the interest of justice. (c) Effect of partial default. — When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (d) Extent of relief to be awarded. — A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (e) Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.

Summary Procedures: motion to declare party in default is a prohibited pleading in summary procedures. Criminal Cases: Court acquires jurisdiction over the accused through arrest (Rule 113), not arraignment (which is a mere compliance with the due process requirement that the accused must be informed).

Motion: a motion is required. Thus, the court cannot declare a party in RULE 9: EFFECT OF FAILURE TO PLEAD WAIVER OF DEFENSES AND OBJECTIONS Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Residual Prerogatives is the authority of the appellate court to dismiss a case motu proprio on the following grounds: 1. Lack of jurisdiction 2. Res judicata 3. Litis pendentia; 4. Prescription. Also in cases governed by the Rules on Summary Procedure. Other grounds are found under Rule 17, Sec. 3: 1. Failure of the plaintiff to appear on the date of the presentation of his evidence in chief for a unreasonable period of time; 2. Failure of the plaintiff to prosecute his action for an unreasonable length of time; 3. Failure of the plaintiff to comply with an order of the court. DEFAULT Section 3. Default; declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (a) Effect of order of default. — A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (b) Relief from order of default. — A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may



default motu propio, only through a motion. The motion is a litigated motion, as such, Sections 4, 5 and 6 of Rule 15 must be complied with (i.e., in writing, set for hearing and a copy of the motion must be served with the adverse party). However, it is different from an ordinary motion, since it is required to be verified; and must show fraud, accident, mistake or excusable neglect, and meritorious defenses. The allegations of (1) fraud, accident, mistake or excusable neglect, and (2) of meritorious defenses must concur. (Banco de

Oro-EPCI vs. Transipek) Judge’s actions once granted: 1. 2.

Judgment based on the pleading; Presentation of evidence by the plaintiff ex-parte.

Defendant entitled to notice of subsequent proceedings: once declared in default, the defendant is still entitled to notice of subsequent proceedings.

However, if plaintiff did not move for declaration of default but only for ex parte presentation of evidence, defendant is not entitled to notice of subsequent proceedings under Sec. 3(a): Even if the order of the court did not limit itself from permitting the movant to presenting its evidence ex parte but in effect the court issued an order of default. This is because the court could not validly do that as an order of default can be made only upon motion of the claiming party. Since no motion to declare petitioner in default was filed, no default order should have been issued. Thus, the defendant cannot reasonably demand that copies of orders and processes be furnished him. (Santos vs. PNOC Exploration Corporation)

Remedy: is to file a motion to set aside/lift the order of default, which must (1) be grounded upon: Fraud, Mistake, Accident or Excusable Negligence and (2) allege that he has a meritorious defense. A Motion for Reconsideration is improper. (Banco de Oro-EPCI vs. Transipek)

Partial Default: when there is a common cause of action against several defendants and only one or not all files an Answer, those who failed to file an answer may be declared in default. However, defenses raised by those who filed an Answer which is applicable to the other co-defendants, may likewise benefit them. This may also arise under Rule 70 of Sec. 7.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Amendment that substantially alters the cause of action allowed: Plaintiff’s default: can happen on permissive counterclaims upon which no answer was filed not in compulsory counterclaims where such claim also arose from the action filed by the plaintiff. Note that the effect of being declared in default is not being able to participate in the trial of the said case. As such, even if the plaintiff is declared in default as to the compulsory counterclaim, he is not totally excluded from the compulsory counterclaim since what he will present as evidence for his cause of action will necessarily negate the compulsory counterclaim.

Judgment by default: must always be preceded by an order of default. Exception: Sec. 3, par. C of Rule 29, which provides: Section 3. Other consequences. — If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: xxx (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and xxx

Remedy against a judgment by default: while the remedy against an order of default is only a motion to lift or set aside the same, in a judgment by default, all remedies against a judgment are available. Partial Default: when only one or two, but not all, of the defendants filed an answer. In this case, the plaintiff may have those who did not answer be declared in default, but he shall not be allowed to present evidence ex-parte, since there are defendants who were not declared in default. Moreover, the defendants may be subject to a common defense.

General Order of Default: applies to actions in rem where the summons are served by publication.

The amendment of the Rule now allows amendments, even if the amendment substantially alters the cause of action or defense, such amendment could still be allowed when it is sought to serve the higher interest of substantial justice; prevent delay; and secure a just, speedy and inexpensive disposition of actions and proceedings. (Lisam Enterprises, Inc. vs. BDO Unibank Inc., and

Ching Tiu vs. PBCOM) KINDS OF AMENDMENTS: 1.

As to nature: a. Formal: Section 4. Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. b.

2.

Substantial – any other amendment not falling within the above definition is considered substantial.

As to whether it is a matter of right: a.

Amendment as a matter of right Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served.

Motion to dismiss already filed: The right granted to the plaintiff under procedural law to amend the complaint before an answer has been served is not precluded by the filing of a motion to dismiss or any other proceeding contesting its sufficiency. (Remington Industrial Sales Corporation vs. CA) b.

Amendment by leave of court Section 3. Amendments by leave of court. — Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

“As in Default”: in this situation, the defendant received notice to appear in the pre-trial but failed to do so or failed to file a pre-trial brief which has the same effect. The court will allow the plaintiff to present evidence ex-parte. The remedy of the defendant is to file a motion for reconsideration showing that his failure to file a pre-trial brief was due to fraud, accident, mistake or excusable neglect.

When allowed:

Not being represented by counsel: is not a valid and meritorious defense to set aside to order allowing the adverse party to present evidence ex parte.

AMENDMENT TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE:

(Saguid vs. CA) IV. RULES 10 to 14 RULE 10: Amended and Supplemental Pleadings Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.

When amendment? When supplemental?: depending on WHEN the event/fact/information to be included occurred. If it happened prior to the filing of the pleading or already available prior to filing, it shall be included therein through amendment. Otherwise, facts that occurred after filing are included in the case through supplements.



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

Applicability: when there is a variance between that which was alleged in the pleadings and that which was proven. Example: the allegation sought to recover P700,000; but the evidence was able to prove that the claim is P1,000,000. In this case, the Rules allow an amendment to conform with the evidence presented.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Purpose: so that for purposes of appeal, it is easier to refer to the pleadings. It is not an indispensable requirement for a valid judgment.

Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof.

No amendment was made: the judgment based on the evidence presented remains to be valid.

Objection: if there is an objection or opposition from the adverse party, it is upon the discretion of the court to grant or deny the same. Nevertheless, the judgment based on the evidence presented is still valid. AMENDMENTS IN CIVIL PROCEDURES vs. CRIMINAL PROCEDURE: 1. In criminal procedures, it is not amendment and supplements, it is amendment and substitution. 2. What is being amended is the information. 3. It is a matter of right before arraignment, after which, it is done only with leave of court. However, if the amendment will result in downgrading a charge or to exclude one of the accused, it is to be done with leave of court, even before arraignment.

Mere error in title of information: such that if the allegations already contained aggravating circumstances that would qualify homicide to murder, would only make the amendment of the information from homicide to murder, formal instead of substantial.

Substitution: discards the earlier filed information and substitutes it with another. While an amendment does not call for another preliminary investigation, the same is not true with substitution, where another preliminary investigation is required. Moreover, a substantial amendment of the Information would likewise require a new preliminary investigation.

Double jeopardy: substitution is not allowed if the accused will be placed twice in jeopardy. SUPPLEMENTAL PLEADINGS Section 6. Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. Section 7. Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. Section 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. EFFECT ON ALLEGATIONS: allegations in the amended pleading are deemed extrajudicial admissions. RULE 11: When to File Responsive Pleadings Section 1. Answer to the complaint. — The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court.

Summary Proceedings: the period is 10 days. Section 2. Answer of a defendant foreign private juridical entity. — Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity.



Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (l0) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)—party complaint, and amended complaint-in-intervention. Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be answered within ten (10) days from service. Section 5. Answer to third (fourth, etc.)-party complaint. — The time to answer a third (fourth, etc.)—party complaint shall be governed by the same rule as the answer to the complaint. Section 6. Reply. — A reply may be filed within ten (10) days from service of the pleading responded to. Section 7. Answer to supplemental complaint. — A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. Section 9. Counterclaim or cross-claim arising after answer. — A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. Section 10. Omitted counterclaim or cross-claim. — When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. Section 11. Extension of time to plead. — Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. RULE 12: BILL OF PARTICULARS Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averted with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired.

Inherent right to extend the period for filing an answer: when one receives a copy of summons and compliant, he must comply with the rule requiring him to answer within a specified period. But the Rules provide him an inherent right to extend a period, i.e., to file a motion for bill of particulars. The extension is the period which has not been consumed yet.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Example: B received a complaint on January 10, so he has until January 25 to file an Answer. If he files a Motion for Bill of Particulars on January 15, he has already consumed the 5 days. So if his Motion is denied, he has only 10 days within which to file his Answer.

Fresh Period Rule: does not apply to a motion for bill of particulars. Bill of Particulars in Civil vs. Criminal Proceedings (Rule 116, Sec. 9): BOP IN CIVIL CASES Anytime before responsive pleading is filed The purpose is for the defendant to properly prepare his responsive pleading

BOP IN CRIMINAL CASES Before arraignment The purpose is to allow the accused to properly plead and prepare for trial.

Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

Which comes first? In initiatory pleadings, filing comes first, then service. It is the court that serves the initiatory pleading to the other party together with the summons. Thereafter, service comes first before filing, e.g., Answer, where before filing with the Court, there must be proof that the same has been served upon the adverse party. Other than an initiatory pleading, processes that emanate from the court are first filed then served, e.g., Judgments, resolutions or orders.

To whom should service be made: the service should be made generally Remedy against order denying or granting Bill of Particulars: is a motion for reconsideration or a petition for certiorari being an interlocutory order.

Motion granted but the plaintiff failed to file a Bill of Particulars: 1. 2.

The case may be dismissed for failure of the plaintiff to comply with an order of the court (Rule 17, Sec. 3); The pleading may be stricken off or portions thereof, as provided under Sec. 4: Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.

to the counsel of record, except when service should also be given to the party, such as a notice of pre-trial, notice of promulgation of judgment, Section 3. Manner of filing. — The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case.

Prohibited Pleading: in the following proceedings:

MANNER OF FILING: Filing may either be done 1. Personally 2. Registered mail.

1. 2. 3.

There is no filing by ordinary mail. In filing through registered mail, the date of filing is the post office stamp on the envelope or the registry receipt.

Summary Procedures; Small Claims; Intra-corporate disputes.

Section 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard.

The reason why ordinary mail is not allowed in filing is because of the prescriptive period. Where in service, the adverse party may contest the propriety or impropriety of such when made through ordinary mail, the same is not necessarily true with regards the court.

Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.

To whom filed: “Clerk of Court” should be understood as the CHIEF Clerk of

Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. Section 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which it is intended. RULE 13: Filing and Service of Pleadings, Judgments and Other Papers Section 1. Coverage. — This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. Section 2. Filing and service, defined. — Filing is the act of presenting the pleading or other paper to the clerk of court.



Court and not the Branch Clerk of Court. Section 4. Papers required to be filed and served. — Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. Section 5. Modes of service. — Service of pleadings motions, notices, orders, judgments and other papers shall be made either personally or by mail. MODES OF SERVICE: may be made through: 1. Personal Service Section 6. Personal service. — Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein.

Service to the person of the defendant: under Rule 14 is only one of the modes in personal service under Rule 13. Under this provision, personal service may be done in the following instances:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

a. b. c.

Delivering personally a copy to the party or his counsel; Leaving it in his office with his clerk or with a person having charge thereof; If no person is found in his office, or his office is not known, or he has no office, by leaving a copy between 8am to 6pm at the party’s or counsel’s residence.

Note that the other two (b and c) are considered substituted service and must comply with the requirements under Rule 14 to be valid. 2.

2. 3.

Service by ordinary mail – upon expiration of 10 days after mailing, unless the court otherwise provides; Service by registered mail – upon actual receipt of the addressee or 5 days from the date he received the first notice of the postmaster, whichever is earlier.

Completeness of filing: 1. Personal filing – upon actual delivery; 2. Filing by registered mail – the posting date or the date on the post office stamp.

Substituted Service Section 8. Substituted service. — If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

Section 11. Priorities in modes of service and filing. — Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.

Improper Mode: personal service is preferred over any other modes. If Substituted Service is resorted to when personal service and service by registered mail or ordinary mail fails. It is done by filing with the CLERK OF COURT with proof of failure of the other modes.

other modes are resorted to, you have to include the reason or provide an explanation, except by reason of convenience or practicality. PROOF OF FILING AND SERVICE

This is different in substituted service of summons where the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. Moreover, this mode of service is not allowed for judgments, final orders or resolutions under Section 9. 3.

By mail (registered, or if none, ordinary)

Section 7. Service by mail. — Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail. SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS Section 9. Service of judgments, final orders, or resolutions. — Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.

Section 12. Proof of filing. — The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. Section 13. Proof of Service. — Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. Proof of Filing and Service Mode Personal

Mode of service: 1.

2.

Personal or through registered mail. Note that there is no substituted service of judgments, final orders or resolutions. If a party cannot serve the same through the earlier modes, it may be made through publication, the duration of which may be fixed by the court. Publication – when a party was summoned by publication.

Why Publish? In order for the prescriptive period to begin to run and accordingly, in order to execute. Section 10. Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. Completeness of service: 1. Personal service – upon actual delivery;



Registered Mail Ordinary Mail

Filing Existence in the records of the case; otherwise, by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same Registry receipt and by the affidavit of the person who did the mailing N/A

Service Written admission of the party served, or the official return of the server, or the affidavit of the party serving. Affidavit and the registry receipt issued by the mailing office. Affidavit of the person mailing of facts

Affidavit of sender: note that it is now required that the party furnish an affidavit of the sender as proof of service. This is a ground for dismissal under Rule 66. Section 14. Notice of lis pendens. — In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

situated notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.

Purpose: the purpose of serving summons is to acquire jurisdiction over the person of the defendant. The other mode is by voluntary appearance under Sec. 20. Mode of Service of Summons can be summarized as follows: 1. Natural Person; Defendant is in the Philippines: a. Service on the person of the defendant; b. Substituted Service

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the rights of the party who caused it to be recorded.

If identity is unknown or known but whereabouts are unknown – publication, even if the case is in personam.

Lis Pendens: is a notice that the property is subject of a pending litigation.

If temporarily out of the Philippines – similar to non-resident. However, since the person continues to be a resident of the Philippines, the Supreme Court has allowed a substituted service of summons.

Purpose: so that any person who transacts with the said property will put to notice of the litigation.

2.

Non-resident natural person; action (a) affects personal status of the plaintiff; (b) subject of which is property within the Philippines, service, with leave of court, may be made by: a. Service upon the person of the defendant; b. Publication in the Philippines with service by registered mail in his last known address; c. Other manner the court may deem sufficient.

3. 4.

Minor – upon the person of the minor and his guardian. Prisoner – service shall be made by the warden or the one in charge of the penal facility; Domestic Juridical Entity – upon the entity’s (1) president, (2) managing partner, (3) general manager, (4) corporate secretary, (5) treasurer, or (6) in-house counsel. Entity without juridical personality – any one of the persons constituting the association or the person in charge of the office or place of business. Foreign Private Juridical Entity – (1) upon its resident agent; (2) on the government official designated by law to that effect (e.g., DFA); (3) any of its officers or agents within the Philippines; (4) publication in the place where it is conducting business; (5) fax, as long as proof of submission can be generated; (6) other modes as may be determined by the court. Public Corporations – (1) if Republic of the Philippines – Solicitor General; (2) Local Government Units – Executive Head or such other officer(s) as the law or the court may direct. Government-owned or –controlled corporation – if created by a charter and no provision as to service of summons, or if created by registration with the SEC – as if domestic juridical entity.

How: by filing a written memorandum, no necessity of an order of the court; the Notice should indicate the institution of the action concerning the subject property; the court where it is pending; the date of commencement of the action; attaching a copy of the complaint or petition. (PD 1529) However, even if a court order is not necessary for a notice of lis pendens, a court order is required to remove/cancel the same, such as when it was only annotated to molest the adverse party.

Who: there is nothing in the rules that a party seeking annotation of the notice must be the owner thereof. The rule merely requires an affirmative relief.

5.

6.

Effect: The notice of lis pendens does not create a right or lien over the property or encumbrance thereon.

7.

Reinstatement: in the event that the RTC cancelled the lis pendens, the CA may validly reinstate the lis pendens. Mortgage: the auction retroacts to the annotation of the mortgage, putting the mortgage beyond any intervening lis pendens or attachment. However, for as long as there is lis pendens, it doesn’t mean that if there is cancellation of title by reason of a sale, the lis pendens is erased. The lis pendens is carried on to the new title.

8.

9.

Applicability: it applies to the following: 1. 2. 3. 4. 5.

Action to recover real property; Action for quieting of title; Action to remove cloud; Partition; Any other proceeding of any kind directly affecting title to the land, or the use or the occupation thereof or the buildings thereon.

It does not apply to attachment, levies of execution or proceedings for the probate of the will. Moreover, it has no application in a proceeding in which the only object sought is recovery of money judgment or sum of money. As such, if the subject is not recovery of property or title to or possession thereof, the doctrine of lis pendens does not apply.

Motion: the law requires that there is an action pending in court and not by mere motion before the LRA. Such motion cannot be the basis of a notice of lis pendens. RULE 14: SUMMONS SUMMONS: an order of the court requiring and informing a party to file an answer to the complaint, otherwise judgment will be rendered against him.

Requirement of Due Process: notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable ingredient of due process. (Sps. Mason vs. CA)



Escheat of a dormant account: the law provides that the summons shall be served upon the President, Treasurer or Managing Officer of the Bank and by publication for the depositor. No individual notice to the depositors is required since escheat proceedings are action in rem whereby an action is brought against the thing itself, i.e., the dormant deposits.

Forfeiture proceedings: service may be made by publication since it is likewise an action in rem.

Publication: from the above, service of summons by publication may be made in the following instances: 1. In actions in rem; 2. Defendant is unknown, even actions in personam; 3. Defendant is known but whereabouts is unknown; 4. If the defendant is a non-resident or not found in the Philippines, with leave of court; 5. If the defendant is a resident, but temporarily out of the Philippines, with leave of court; 6. If the defendant is a foreign juridical entity, in the place where business is conducted. Section 1. Clerk to issue summons. — Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 2. Contents. — The summons shall be directed to the defendant, signed by the clerk of court under seal and contain (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem if any, shall be attached to the original and each copy of the summons. Section 3. By whom served. — The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. Section 4. Return. — When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service. Section 5. Issuance of alias summons. — If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons.

Applicability: when the original summons was: 1. 2.

Returned unserved; or Lost.

Section 6. Service in person on defendant. — Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. 2 MODES OF SERVICE IN PERSON: 1. By handing a copy of the summons to the defendant in person; or 2. By tendering it to him, if he refuses to receive and sign it. Section 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

Four requirements to effect a valid substituted service of summons: 1.

Impossibility of prompt service on the person of the defendant; In general, substituted service can be availed of only after a clear showing that personal service of summons was not legally possible. (Sps.

Jose vs. Sps. Boyon) 2. 3. 4.

Specific details in the return describing the facts and circumstances surrounding the service on the person of the defendant; If to be effected in the defendant’s house, it must be left to a person of suitable age and discretion residing therein; If to be effected in the defendant’s office, it must be served upon a competent person in charge thereof. (Manotoc vs. CA)

Residence, must be that at the time of service. The service of the summons on a person at a place where he was a visitor is not considered to have been left at the residence or place or abode, where he has another place at which he ordinarily stays and to which he intends to return. Thus, the service of summons upon the brother of the defendant, who was only there to collect rentals, and is not shown to live there, is not valid. (Domagas vs. Jensen) Person to receive: the report should indicate the person who received the summons in the defendant’s behalf; that he was one with whom the



defendant had a relation of confidence, ensuring that the latter actually receive the summons.

Security guard: not authorized and who does not possess a relation of confidence that the defendant would receive the summons is not the kind of service contemplated by the rule. Thus, service on the security guard could not be considered as substantial compliance with the requirements of substituted service. (Chu vs. Mach Asia Trading)

How many attempts: at least three, preferably on at least two different dates. (Manotoc vs. CA) Note, however, in Macasaet vs. Co, the SC held that there was valid substituted service when the summonses served twice within the day and there was evidence of actual receipt.

“Reasonable Time”: for service in the person of the defendant may be understood as “one month” from the issuance of summons. Section 8. Service upon entity without juridical personality. — When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought.

Upon whom is summons served: all the defendants by serving upon: 1. 2.

Any one of them; The person in charge of the office or place of business.

Such service will not bind individually any person whose connection with the entity has been severed before the action was brought. Section 9. Service upon prisoners. — When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose.

Warden: in this case is not the one upon whom summons is served, but the one authorized as a sheriff to serve the summons upon the prisoner. Section 10. Service upon minors and incompetents. — When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally AND on his legal guardian if he has one, or if none his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. Section 11. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the (1) president, (2) managing partner, (3) general manager, (4) corporate secretary, (5) treasurer, or (6) in-house counsel.

Test of Validity and Sufficiency of Service of Summons: is whether: 1. 2. 3.

The same and the attachments thereto were ultimately received by the corporation; No undue prejudice is sustained by it from procedural lapse; and It was afforded full opportunity to present its responsive pleading.

Where a corporation only learns of the service of summons and the filing of the complaint against it through some person or means other than the person actually served, the service of summons becomes meaningless. (Millennium

Industrial Commercial Corporation vs. Tan) Enumeration is exclusive: the designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Sec. 11, Rule 14. The then Sec. 13 of this Rule allowed service upon a defendant corporation to be made on the president, manager, secretary, cashier, agent or any of its directors. The aforesaid terms were obviously ambiguous and susceptible of broad and

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

sometimes illogical interpretations, especially with the word agent of the corporation. (EB Villarosa vs. Benito)

Government Official designated by law; example: Governor of BSP for banks, Insurance Commissioner for insurance companies.

The enumeration above is exclusive and that service of summons upon one who is not enumerated therein is invalid. (Millennium Industrial Commercial

The above has been amended by AM No. 11-3-6-SC as follows:

Corporation vs. Tan) Rationale: The rationale of the rule is that service of summons must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he will realize his responsibilities and know what he should do with any legal papers received by him. (Millennium Industrial

AMENDMENT OF SECTION 12, RULE 14 OF THE RULES OF COURT ON SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY

Section 12, Rule 14 of the Rules of Court is hereby amended to read as follows:

Commercial Corporation vs. Tan) Exception: SUBSTANTIAL COMPLIANCE: however, it is settled that substantial compliance by serving summons on persons other than those mentioned in the above rule may be justified (Millennium Industrial Commercial Corporation vs. Tan), such as if it appears that the summons and complaint were in fact received by the corporation, there is substantial compliance with the rule as its purpose has been attained. (G & G Trading

Corporation vs. CA) REQUISTIES OF APPLICATION OF THE DOCTRINE OF SUBSTANTIAL COMPLIANCE: 1.

2. 3.

There must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; The person served must sign a receipt or the sheriff’s return; and There must be ACTUAL RECEIPT of the summons by the CORPORATION through the person on whom the summons was actually served.

The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained.

For substantial compliance to apply, receipt cannot be inferred, the same must be actual: for there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown. Where a corporation only learns of the service of summons and the filing of the complaint against it THROUGH SOME PERSON OR MEANS OTHER THAN THE PERSON ACTUALLY SERVED, the summons becomes meaningless.

"SEC. 12. Service upon foreign private juridical entity. — When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by-registered mail at the last known address of the defendant; c) By facsimile or any recognized electronic means that could generate proof of service; or d) By such other means as the court may in its discretion direct." This rule shall take effect fifteen (15) days after publication in a newspaper of general circulation in the Philippines.

March 15, 2011 Service to BRANCH manager; not valid: since the enumeration is exclusive, the service should be done upon a GENERAL manager and not a BRANCH manager. Service to the latter is not valid and will not bind the corporation since the branch manager is not included in the enumeration of the statute of the persons upon whom service of summons can be validly made in behalf of the corporation. (EB Villarosa & Partner Co., Ltd., vs. Benito,

Section 13. Service upon public corporations. — When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

BPI vs. Santiago) Service to Legal Assistant; not valid: since the enumeration is restricted, limited and exclusive. A legal assistant, is not one of those authorized to receive court processes in behalf of the president. Especially so, when the same is made on a legal assistant not employed by the defendant but that of its related companies, but nonetheless a separate entity.

When defect is cured: 1.

Service of alias summons – whatever defect attended the service of the original summons, was promptly and accordingly cured. (BPI vs.

2.

Filing of motion seeking affirmative relief – a defendant’s Entry of Appearance with Motion for Time, equivalent to a voluntary appearance, places the defendant under the jurisdiction of the court. (DOLE

Santiago)

Philippines Inc. vs. Quilala) Section 12. Service upon foreign private juridical entities. — When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on (1) its resident agent designated in accordance with law for that purpose, or, (2) if there be no such agent, on the government official designated by law to that effect, or (3) on any of its officers or agents within the Philippines.



SERVICE BY PUBLICATION: 14. Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is

Section

designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

Any action: the present rule expressly states that it applies “in any action where the defendant is designated as unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry.” Thus, it now applies to ANY ACTION, WHETHER IN PERSONAM, IN REM OR QUASI IN REM. (Santos vs. PNOC Exploration Corporation) Section 15. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

Extraterritorial Service; when applicable: 1. 2.

When the defendant does not reside and is not found in the Philippines; AND The action: a. Affects the personal status of the plaintiff; or b. Relates to, or the subject of which is property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines.

jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

Motion to Dismiss: for a defendant not to be considered to have submitted through voluntary appearance, the submission must be UNEQUIVOCAL or CATEGORICAL, e.g., a motion to dismiss on any ground, even if not for lack of jurisdiction. A motion to dismiss precisely questioning jurisdiction over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court. (EB Villarosa & Partner Co., LTD vs. Benito) However, if a motion to extend time is filed, by asking affirmative relief from the court, such as to admit answer or for reconsideration of default judgment, the defendant is deemed to have voluntarily submitted to the court’s jurisdiction. (DOLE Philippines, Inc. vs. Quilala)

Substituted Service, when allowed: Service upon the person of the husband of the defendant is not within the first two modes. Thus, to be valid, it must fall under the third mode, and as such, must be done with leave of court. (Valmonte vs. CA)

OTHER CASES ON SUMMONS: 1. Heirs who are not registered owners of the land subject of the litigation, but represented merely an inchoate interest thereto as heirs had no standing in court because the property of the estate was represented by the executor or administrator. Thus, there was no need to implead them as defendants in the case, in as much as the estate of the deceased had already been made a party. As such, there was no need to include said heirs. Not being parties to the case, were not entitled to service of summons. (Ramos vs. Ramos) 2. Although the respondent should have resorted to other means to determine the correct address of the petitioner when it was informed by the sheriff that he failed to serve the summons on the petitioner, the respondent is not entirely to blame for such failure because the petitioner’s address as indicated by Wood Based Panels, Inc., and Sinrimco, Inc. on their respective General Information Sheets, was incorrect. (Teh vs. CA)

Summons served by registered mail: may only be done as “any other

V.

How made? by leave of court: 1. 2.

3.

by service upon the person of the defendant as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient.

manner the court may deem sufficient”. Note that service of summons by registered mail is not allowed in other cases. Ordinarily service of summons cannot be done by mail (registered or ordinary) because it will be dependent upon the mail proper by which the court do not necessarily have control. Section 16. Residents temporarily out of the Philippines. — When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. Section 17. Leave of court. — Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. Section 18. Proof of service. — The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. Section 19. Proof of service by publication. — If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. Section 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of



RULES 15 to 19 RULE 15: Motions

Section 1. Motion defined. — A motion is an application for relief other than by a pleading. In motions, particular relief is sought; while in a pleading, general relief is prayed for. As such, a motion is a kind of pleading, but pleadings are not motions. 2 KINDS OF MOTIONS: 1. Litigated – requirements are under Sec. 4, 5 and 6: a. In writing; b. Notice - serve a copy to the adverse party; c. Set for hearing. 2. Non-litigated Section 2. Motions must be in writings. — All motions shall be in writing except those made in open court or in the course of a hearing or trial.

Written motions which are non-litigious: motion for postponement and motion for extension of time. Although required to be in writing and a copy thereof sent to the other party, it is not required to be set for hearing. Section 3. Contents. — A motion shall state (1) the relief sought to be obtained and (2) the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. Section 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. Section 5. Notice of hearing. — The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.

Section 10. Form. — The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. RULE 16: Motion to Dismiss

When Filed: generally, before an answer is filed. Except, if grounded upon 3-day NOTICE and 10-day SETTING rule: when a motion is filed on February 1, the hearing must not be later than February 11 and the notice must be received by the adverse party not later than February 8 if the motion is set for hearing on the 11th. If there is a conflict, such that the notice was received only on the 10th, the hearing should be sent on the 13th. The 3-day notice rule is preferred over the 10-day setting rule. This is because the notice is a matter of due process, whereas the 10-day setting rule is only with regards the calendar of the court.

When notice is not required: when the motion is ex-parte or will not prejudice the right of the other party, such as a motion to set the case for pre-trial. Section 6. Proof of service necessary. — No written motion set for hearing shall be acted upon by the court without proof of service thereof. Section 7. Motion day. — Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. Section 8. Omnibus motion. — Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

Exceptions to the omnibus motion rule: 1. 2. 3. 4.

The court has no jurisdiction over the subject matter; That there is an action pending between the same parties for the same cause; or That the action is barred by prior judgment or By the statute of limitations.

Lack of jurisdiction over the person of the defendant is waived if not raised in a Motion to Dismiss or Answer: the defense of lack of jurisdiction over the person of a party to a case is not one of those defenses which are not deemed waived under Section 1 of Rule 9, such defense must be invoked when an answer or a motion to dismiss is filed in order to prevent a waiver of the defense. If the objection is not raised either in a motion to dismiss or in the answer, the objection to the jurisdiction over the person of the plaintiff or the defendant is deemed waived by virtue of the first sentence of the above-quoted Section 1 of Rule 9 of the Rules of Court. (Boston Equity

the 1. 2. 3. 4.

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. GROUNDS: PSV-LAB-NEUC: RELATED RULES: (a) Rule 14: Summons or Voluntary Appearance; (b) Conferred by law; (c) Rule 4: Venue; (d) Rule 3: Parties; e.g. a minor who sues in his own instance without the assistance of a parent or guardian. (e) Litis Pendentia; one case for a single cause of action: Rule 2: Cause of Action;

Requirements of litis pendentia: 1. 2. 3.

Resources, Inc. vs. CA) Defective Certification of Non-Forum Shopping and/or Verification is waived if not raised in a Motion to Dismiss or Answer: Absent any justifiable reason to explain the fatal omission, the ground of defective verification and certification of forum shopping was deemed waived and could no longer be questioned by the petitioners in their second motion to dismiss.

following: Lack of jurisdiction over the subject matter; Litis Pendentia; Res Judicata; Statute of Limitations.

Such that a decision in one case will amount to res judicata on the other. (f)

Res Judicata;

Requirements of Res Judicata: (FJCI) There must be final judgment – in the sense of Rule 39

1.

(Sps. De Guzman vs. Ochoa) Section 9. Motion for leave. — A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

2.

When necessary: 1. 2. 3. 4.

Pleadings in intervention; 3rd, 4th – party claim; Cross-claim. Demurrer.



Identity of parties; Identity of subject matter; Identity of causes of action.

3.

(Execution of Judgment), not under Rule 36 because a mere final judgment has no entry yet, and it can be remedied under Rule 37 and Appeal. “final” should be “executory”. It must be a judgment on the merits – does not mean that there was a trial proper or presentation of evidence. As long as all the parties were given the opportunity to present their side, or their position, it will suffice that the judgment is one on the merits. Examples: Judgment by default; Summary Judgment; Judgment on the Pleadings; Judgment based on compromise; Judgment must be rendered by a court of competent jurisdiction – which goes into the validity of the judgment,

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

4.

because a judgment rendered by a court without jurisdiction is null and void; Identity of cause of action, subject matter and parties – “parties” need not be literal, such that successors-in-interest may still be considered identical “parties”, the better term would be identity of interests.

The above requirements are for res judicata proper. The other kind of res judicata is Conclusiveness of Judgment, which lacks the identity of cause of action requirement. (Sec. 47, Rule 39) Example: In a probate of the will whose subject is the extrinsic validity of the same, ownership over a property was determined with the consent of the parties affected thereto, who are all heirs (as an exception to the limited jurisdiction of the probate court). If later on, one of the heirs would file an action for res judicata, there is no identity of cause of action for res judicata to apply, but conclusiveness of judgment will bar the claim since the issue on ownership has already been decided upon.

Law of the case doctrine: is still different from conclusiveness of judgment. Under this doctrine, once a decision attains finality, it becomes the law of the case, whether or not said decision is erroneous. Having been rendered by a court of competent jurisdiction acting within its authority, the judgment may no longer be altered even at the risk of legal infirmities and errors it may contain. Criminal Actions: the equivalent of res judicata in criminal actions is double jeopardy. (g) States no cause of action: Rule 2: Cause of Action; No cause of action – by examining the complaint, assuming the allegations to be true, there is no cause of action, such as there was no right, or there is a right but there was no breach, or the defendant is not a real party in interest. Based on the reading of the complaint, the court cannot render a relief. Lack of cause of action – considers evidence already presented. In this case, the proper remedy is not the filing of a motion to dismiss but by filing a demurrer. (h) Rule 6: Affirmative Defenses (i) Statute of Frauds; (j) 3 conditions precedent: (prematurity) 1. Exhaustion of Administrative Remedies; 2. Barangay Conciliation Proceedings; 3. When the case is between members of the same family – earnest effort to arrive at a settlement. *exceptions to the barangay conciliation requirement: a. an action wherein one of the parties is a government instrumentality; b. when a public officer is involved and the action involved his public office c. where one of the parties is a corporation d. If the parties resides in different cities or municipalities except when they voluntarily submit themselves in the proper forum and the barangay in which they reside is adjacent to each other. So even if the parties reside in different cities or municipalities but they reside in a barangay who is adjacent to each other there is still a need for barangay conciliation. e. When the action avails any of the provisional remedies *Note: non-compliance with barangay conciliation proceedings is no longer jurisdictional in that they may be waived. *Dismissal due to non-compliance with conditions precedent is grounded on prematurity. Such that, the court does not dismiss but merely suspends the proceedings subject to compliance thereof.

Time of Filing: “before answer” under Section 1 is not absolute. A motion to dismiss may be filed on the four grounds under Sec. 1 of Rule 9: lack of



jurisdiction over the subject matter, res judicata, litis pendentia and prescription.

Compare with: Rule 117, Sec. 3: see Sec. 3, Rule 117 for the comparison. Section 2. Hearing of motion. — At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. Section 3. Resolution of Motion. — After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. REMEDY IF DISMISSED: file an answer and wait for judgment. Afterwhich, an appeal may be had. No appeal. Since an order denying a motion to dismiss is interlocutory. However, a petition for certiorari may be filed on jurisdictional grounds or if there is grave abuse of discretion amounting to lack or excess of jurisdiction. REMEDY IF GRANTED: 1. Appeal - If dismissal is with prejudice, such as res judicata, prescription, the claim has been paid, waived, abandoned or otherwise extinguished, or unenforceable under the statute of frauds. The grant of a motion to dismiss is a final order subject of an appeal, because the case was dismissed, there is nothing left for the court to do. 2. Certiorari – if dismissal is without prejudice, since appeal is not an available remedy under Sec. 1 of Rule 40, where the dismissal is without prejudice to re-filing.

Order of Issuance of Alias Summons: in a motion to dismiss grounded upon lack of jurisdiction over the person of the defendant due to improper service of summons, the court may order the issuance of alias summons since the grant of the motion would result in a dismissal without prejudice where the case may be re-filed. As such, the court, even if not provided under Sec. 3, may issue an alias summons. Section 4. Time to plead. — If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period.

No fresh period rule: the filing of the motion to dismiss will interrupt the period to file the answer. However, the party shall only have the balance of the period, but not less than 5 days. Section 5. Effect of dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim.

Dismissal is always with prejudice: if based on the following grounds: 1. 2. 3.

Res judicata/Prescription; That the claim has been paid, waived, abandoned or otherwise extinguished; That the claim is unenforceable under the statute of frauds.

Section 6. Pleading grounds as affirmative defenses. — If no motion to dismiss has been filed, any of the grounds for dismissal provided for in

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. RULE 17: Dismissal of Actions Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.

Dismissal by plaintiff: under this rule, the dismissal is caused by the plaintiff, and no ground is required.

Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

Grounds for dismissal by the court MOTU PROPIO: similar to Sec. 1 of Rule 9, the court may dismiss the complaint motu propio on the following grounds: 1. Failure of the plaintiff to appear on the date of the presentation of his evidence in chief; 2. Failure of the plaintiff to prosecute his action for an unreasonable length of time; 3. Failure to comply with the Rules of Court or any order of the court.

Effect on counterclaim: the dismissal is without prejudice to the right of the defendant to prosecute the counterclaim whether on the same action or in a separate action.

Order of Confirmation: for the dismissal under this rule, the court must issue an order of confirmation, without which, the dismissal does not become effective.

Re-filing of the case: dismissal under this section is deemed to be on the merits, unless otherwise declared by the court.

This is different from the Order of Confirmation under Rule 68: Judicial Foreclosure which cuts the equity of redemption.

Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — The provisions of this Rule shall apply to the dismissal of

Before answer: if the notice was given AFTER an answer has been filed, the rule will no longer apply.

2-dismissal rule: when the action has been dismissed once before by the plaintiff under this rule, the 2nd dismissal shall be deemed an adjudication of the merits. Therefore, res judicata will apply. Note, however, that the two dismissals must be valid. Such that, if the first dismissal was due to lack of jurisdiction, the rule will not apply yet. Section 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court.

Dismissal is upon motion: in contrast with Sec. 1, where the dismissal is by notice. Similar to the first dismissal under Sec. 1, the dismissal under this Section is without prejudice unless otherwise specified. Class suit: cannot be dismissed under Sec. 1, only by motion and with approval of the court. Effect on counter-claim: whether compulsory or permissive: 1. 2.

Not dismissed. The dismissal is limited to the complaint. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action UNLESS within 15 days from notice of the motion, he manifests his preference to have his counterclaim resolved in the SAME action

This is an exception to the rule that the dismissal of the complaint carries with it the dismissal of the compulsory counterclaim. This is because the defendant was already prejudiced by the filing of the complaint.



any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. RULE 18: Pre-Trial Section 1. When conducted. — After the last pleading has been served and filed, if shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial.

Setting for pre-trial: is by MOTION (non-litigated) after the last pleading has been served and filed. Under the guidelines for pre-trial, the plaintiff has 5 days to file the motion from the service of the last pleading.

Criminal cases: pre-trial for criminal cases is under Rule 118. Section 2. Nature and purpose. — The pre-trial is mandatory. The court shall consider: (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action. Section 3. Notice of pre-trial. — The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him.

Notice: under the guidelines, the notice is provided to BOTH the counsel and the parties.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 4. Appearance of parties. — It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents.

Representative: of a party who does not appear in the pre-trial must be AUTHORIZED in writing: 1. 2. 3.

To enter into an amicable settlement; To submit to alternate modes of dispute resolution; and To enter into stipulations or admissions of facts and of documents.

which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall, explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.

Testimony need not be presented for matters already stipulated during pre-trial: Age of the victim was stipulated at the pre-trial and the birth certificate marked as evidence; likewise, the victim testified as to her age. As such, there is no need to present the birth certificate during the trial to prove the age of the victim. (People vs. Perez) RULE 19: Intervention

Section 5. Effect of failure to appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.

Failure of PLAINTIFF to appear: shall be cause for the dismissal of the action with prejudice, unless otherwise ordered by the court.

Failure of DEFENDANT to appear: cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. No need to declare defendant in default. Remedy for failure to appear: as for reconsideration showing that his failure to appear or to file a pre-trial brief (which has the same effect) was due to fraud, accident, mistake or excusable neglect. (Saguid vs. CA) Both present: the parties will undergo mandatory conciliation or mediation proceedings. If no amicable settlement is reached, the mediator shall forward the records of the case to the court for preliminary conference.

Preliminary Conference before the branch Clerk of Court: if there is no amicable settlement reached, the case shall be set for preliminary conference where the parties shall be asked of their stipulations and admissions, evidence are marked, and the names of the witnesses are provided. Section 6. Pre-trial brief. — The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Failure of the defendant to submit a pre-trial brief shall have the same effect as failure to appear at the pre-trial, i.e., the plaintiff may present evidence exparte. Remedy of the defendant is to ask for reconsideration and provide a reason for non-compliance. Not being assisted by counsel is not a valid ground.

Section 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding.

Who may intervene: a person who: 1. 2.

Has legal interest over the subject matter of the case, either for or against the defendant, the plaintiff or both; Is situated to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer.

Ombudsman who rendered the decision in the administrative case is not a proper party to intervene: the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of demotion or dismissal from the service. The government party appealing must be the one that is prosecuting the administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent Clearly, the Office of the Ombudsman is not an appropriate party to intervene in the instant case. It must remain partial and detached. More importantly, it must be mindful of its role as an adjudicator, not an advocate. The Office of the Ombudsman is not a third party who has a legal interest in the administrative case against the petitioner such that it would be directly affected by the judgment that this Court had rendered. It must be remembered that the legal interest required for an intervention must be direct and immediate in character. Lest it be forgotten, what was brought on appeal before this Court is the very Decision by the Office of the Ombudsman. Plainly, the Office of the Ombudsman, as an adjudicator, and not an advocate, has no legal interest at stake in the outcome of this Rule 43 Petition (Office of the

Ombudsman vs. Sison) A person who did not intervene before the trial court or the CA, cannot maintain an action for certiorari to question the decisions of the said court: a person not a party to the proceedings in the trial court or in the CA cannot maintain an action for certiorari in the Supreme Court to have the judgment reviewed. Stated differently, if a petition for certiorari or prohibition is filed by one who was not a party in the lower court, he has no standing to question the assailed order. A petition seeking to annul a writ of preliminary injunction issued by the CA cannot be allowed if the party filing it did not bother to intervene in the CA cases. (Fernandez vs. CA)

(Saguid vs. CA) Section 7. Record of pre-trial. — The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order



How: by leave of court. No direct intervention, must always be preceded by leave of court.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Under Rule 15, Sec. 1, a motion for leave to intervene may be filed attaching thereto the answer or complaint in intervention.

corpus cases, election cases, special civil actions, and those so required by

Purpose: is not to delay the proceedings, but to resolve the case in one

Section 2. Assignment of cases. — The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present.

setting.

Requisites: 1. 2. 3.

The intervenor has legal interest in the case; The adjudication of the rights of the parties will NOT be delayed or prejudiced; That the intervenor’s right cannot be protected in a different proceeding.

Section 2. Time to intervene. — The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.

When: as a general rule, the motion must be filed before rendition of judgment. (Yao vs. Perello) Exception: In Pinlac vs. CA, where the intervention was filed before the

law.

RULE 21: Subpoena Section 1. Subpoena and subpoena duces tecum. — Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.

Subpoena vs. Summons: compared to a Summons, a subpoena is not issued to acquire jurisdiction over a person, but a judicial invitation for the person to appear before the court or produce documents.

Supreme Court, during a motion for reconsideration. The Court allowed the intervention in the interest of substantial justice.

Kinds:

In this case, the intervenor was the Republic concerning the annulment of land titles of Filinvest.

2.

Moreover, even if the judgment has already been rendered and attained finality, intervention may still be allowed if the intervenor is an indispensable party. This is because the judgment would be useless, null and void, if an indispensable party would not be allowed to intervene.

Exceptional circumstances may warrant the granting of an intervention even after the decision has attained finality, to wit: 1. 2. 3. 4.

The interests of the intervenor arose only after rendition of the judgment; The intervention would not result in delay or prejudice to the rights of the parties; The ground of the intervenor was ownership of the property subject of the execution where he filed his intervention; and Upon learning of the execution, the intervention was the most opportune and expedient remedy available to the intervenor. (Rodriguez vs. CA)

Section 3. Pleadings-in-intervention. — The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter.

Dismissal of principal complaint: carries with it the dismissal of a complaint-in-intervention since the latter is only ancillary to the former. Section 4. Answer to complaint-in-intervention. — The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court.

Remedy to Question Grant of Motion for Leave to Intervene is CERTIORARI: when a court commits a mistake and allows an uninterested person to intervene in a case—the mistake is not simply an error of judgment, but one of jurisdiction. In such event, the allowance is made in excess of the court’s jurisdiction and can only be the product of an exercise of discretion gravely abused. That kind of error may be reviewed in a special civil action for certiorari. (Anonuevo vs. Intestate Estate of Rodolfo Jalandoni) RULE 20: Calendar of Cases Section 1. Calendar of cases. — The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas



1.

Subpoena duces tecum - require him to bring with him any books, documents, or other things under his control. Subpoena ad testificandum - a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.

Section 2. By whom issued. — The subpoena may be issued by — (a) the court before whom the witness is required to attend; (b) the court of the place where the deposition is to be taken; (c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or (d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court.

Who may issue: aside from courts, as stated above, the following may issue a subpoena: 1. NBI; 2. DOJ; 3. Senate and House of Representatives; 4. Other investigative bodies (quasi-judicial tribunals) 5. Commissioners under Rule 32. Convict sentenced to death, reclusion perpetua and life imprisonment: only the Supreme Court may authorize the issuance of a subpoena to bring the said convict to court.

Pending case: a subpoena for civil and criminal procedures cannot be issued without a pending case. This is different from Senate and Congressional Hearings in aid of legislation which have different rules. Section 3. Form and contents. — A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 4. Quashing a subpoena. — The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served.

Grounds for quashing a subpoena: 1.

2.

Duces Tecum: a. It is unreasonable and oppressive; b. The relevancy of the documents does not appear; c. The person in whose behalf the subpoena is issued fails to advance the cost of production; d. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. e. There is no reasonable description of the documents required to be produced. Ad testificandum: a. The witness is not bound by the subpoena; b. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served.

Not bound: when the witness is disqualified, such as an insane person or any person whose testimony is privileged. Viatory Right – if the witness is residing more than 100km from the place where to testify, he may not be compelled to attend. (Section 10, Rule 21) The one who caused the issuance of the subpoena must pay the expenses of transportation. Section 5. Subpoena for depositions. — Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court.

court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. RULE 22: Computation of Time Section 1. How to compute time. — In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. Section 2. Effect of interruption. — Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period. VI. RULES 23 to 32 MODES OF DISCOVERY: 12: 1. Deposition pending appeal 2. Deposition before action 3. Deposition pending action 4. Interrogatories to parties 5. Admission by Adverse Parties 6. Production of things 7. Production of instruments/documents 8. Inspection of things 9. Inspection of instruments/documents 10. Physical examination 11. Mental examination

Section 6. Service. — Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day's attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered.

Purpose of Modes of Discovery: are meant to enable a party to learn all

Section 7. Personal appearance in court. — A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer.

Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

Section 8. Compelling attendance. — In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. Section 9. Contempt. — Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the



the material and relevant facts, not only known to him and his witnesses but also those known to the adverse party and the latter's own witnesses. In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid before the Court, without omission or suppression.

(Dasmarinas Garments, Inc. vs. Reyes) RULE 23: Depositions Pending Action

DEPOSITION is the testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by court, or under a general law or court rule on the subject, and reduce to writing and duly authenticated, and intended to be

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

used in preparation and upon the trial of a civil or a criminal prosecution. A pretrial discovery device by which one party (through his or her attorney) ask oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the court room, usually in one of the lawyer's offices. A transcript — word for word account — is made of the deposition. Testimony of [a] witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories. (People vs. Webb)

Rule 23 is not applicable to Criminal Cases: the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise. (Vda. De Manguera vs. Risos) Leave of Court: 1.

2.

Necessary when: a. After jurisdiction over the person of the defendant has been acquired but before issues are joined (before filing and service of the Answer); and b. Taking the deposition of a person confined in prison. Not necessary after issues have been joined.

Before issues are joined, leave of court is necessary to limit the questions that the movant may ask to avoid any prejudice against the person whose deposition is to be taken. After joining of the issues, leave of court is no longer necessary, since it would necessarily follow that the questions are limited to the issues which have been determined.

Exception to the open court requirement: deposition is a full exception to the requirement that testimonial evidence must be taken in open court under Rule 132, Section 1. However, they are not generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at the trial or hearing any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing. However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 23 of the Rules of Court. (Dasmarinas Garments, Inc. vs. Reyes)

Depositions may be taken at any stage of the proceeding: Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. (Dasmarinas Garments, Inc. vs. Reyes) However, in People vs. Webb, it was held that a deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. In fact, rules on criminal practice — particularly on the defense of alibi, which is respondent's main defense in the criminal proceedings against him in the court below — states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. Section 2. Scope of examination. — Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of



any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

What may be asked: 1. 2. 3. 4. 5.

Any matter, not privileged; Relevant to the subject of the pending action; Whether relating to the claim or defense of any other party; Including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and Identity and location of persons having knowledge of relevant facts.

Section 3. Examination and cross-examination. — Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. Section 4. Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions; (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead, or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition, or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment, or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. Section 5. Effect of substitution of parties. — Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. Section 6. Objections to admissibility. — Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing, to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. Section 7. Effect of taking depositions. — A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

When does a deposition become testimonial evidence? The taking of a deposition does not necessarily make a deponent the witness of the one requesting for his deposition. His deposition becomes testimonial evidence only when offered.

1. 2.

c. The effect of such use (except the purpose of contradicting or impeaching a deponent) is that the witness, whose testimony was used, becomes the witness of the party introducing the deposition, but this does not apply to the use by an adverse party under par. (b), as provided under Sec. 8: Section 8. Effect of using depositions. — The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this Rule. Section 9. Rebutting deposition. — At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

DEPOSITION OFFICER: before whom may depositions be taken? 1.

Within the Philippines (Section 10): a. Any judge; b. Notary public; or c. Any person authorized to administer oaths, as stipulated by the parties, under Sec. 14. Section 10. Persons before whom depositions may be taken within the Philippines. — Within the Philippines depositions may be taken before any judge, notary public, or the person referred to in section 14 hereof.

2.

In foreign countries (Section 11): a. Secretary of embassy or legation, consul, general consul, viceconsul, or consular agent of the Republic of the Philippines – on notice; b. Such person or officer as may be appointed by commission or under letters rogatory; To whom addressed: i. Notices or Commission – officers may be designated either by name or descriptive title ii. Letters rogatory – to the appropriate judicial authority in the foreign country. (Section 12) NOTE: Commission is a notice to any person named or designated therein, while a letter rogatory is addressed to a judicial officer in the particular foreign country. A commission may be defined as "(a)n instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal". Letters rogatory, on the other hand, may be defined as "(a)n instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed" Requirements: i. Issued only when necessary and convenient; ii. Application; iii. Notice; iv. Issued only on such terms and with such direction as just and appropriate. (Section 12)

Commission – follows the Rules in the Philippines; Letter Rogatory – once accepted by the foreign judicial officer, will follow the procedure in the foreign country.

Any person authorized to administer oaths, as stipulated by the parties, under Sec. 14. Section 11. Persons before whom depositions may be taken in foreign countries. — In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in section 14 hereof.

DISQUALIFICATION OF DEPOSITION OFFICER: Section 13. Disqualification by interest. — No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties, or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action.

Who are disqualified: 1. 2. 3. 4.

A relative within the sixth degree of consanguinity or affinity of any of the parties or of their counsel; Employees of any of the parties or of their counsel; Counsel of any of the parties; Any person who is financially interested in the action.

DEPOSITION OFFICER BY STIPULATION: Section 14. Stipulations regarding taking of depositions. — If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules and when so taken may be used like other depositions.

Requirements: 1. 2.

Stipulation in writing; The person must be authorized to administer oaths.

TWO TYPES OF DEPOSITIONS PENDING ACTION: 1. Depositions through oral examination; and 2. Depositions upon written interrogatories. Section 15. Deposition upon oral examination; notice; time and place. — A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing, to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. Section 16. Orders for the protection of parties and deponents. — After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court or the court may make any other order

Procedure to be followed:



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

Orders for the protection of the parties and deponents: 1. 2. 3. 4. 5. 6. 7. 8.

9.

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

Section 17. Record of examination, oath; objections. — The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. Section 18. Motion to terminate or limit examination. — At any time during the taking of the deposition, on motion or petition of any party or of the deponent, and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable.

When may motion to terminate or limit examination be granted? 1. 2.

Upon motion or petition of any party or of the deponent; There must be a showing that the examination is being conducted: a. In bad faith; or b. In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.

Resumption: after an order terminating the examination has been made, it may be resumed only upon order of the court in which the action is pending. Section 19. Submission to witness; changes; signing. — When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state



on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason be given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Requirements which may be waived: 1. 2.

Reading of the deposition to or by the witness; Signature of the witness (other than waiver, if the witness is ill or cannot be found or refused to sign).

Section 20. Certification, and filing by officer. — The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. Section 21. Notice of filing. — The officer taking the deposition shall give prompt notice of its filing to all the parties. Section 22. Furnishing copies. — Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. Section 23. Failure to attend of party giving notice. — If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees. Section 24. Failure of party giving notice to serve subpoena. — If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees.

Sec. 23 and 24: are instances where deposition does not take place either by failure of said party to attend or by failure to serve subpoena upon the witness, and as such, he would be liable for the reasonable expenses of travel including attorney’s fees to the other party attending such deposition. Section 25. Deposition upon written interrogatories; service of notice and of interrogatories. — A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-

interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. Section 26. Officers to take responses and prepare record. — A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. Section 27. Notice of filing and furnishing copies. — When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. Section 28. Order for the protection of parties and deponents. — After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. Section 29. Effect of errors and irregularities in depositions. — (a) As to notice. — All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (b) As to disqualification of officer. — Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to competency or relevancy of evidence. — Objections to the competency of witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground, of the objection is one which might have been obviated or removed if presented at that time. (d) As to oral examination and other particulars. — Errors and irregularities occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. (e) As to form of written interrogatories. — Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. (f) As to manner of preparation. — Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. RULE 24: Depositions Before Action or Pending Appeal Section 1. Depositions before action; petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines may file a verified petition in the court of the place of the residence of any expected adverse party.

Whose testimony may be perpetuated? Any POSSIBLE witness, which may include the one filing the petition or any other person regarding any matter cognizable in any court of the Philippines.

Which court has jurisdiction? RTC. Not capable of pecuniary estimation. Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. Section 3. Notice and service. — The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. Section 4. Order and examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may be taken in accordance with Rule 23 before the hearing. Section 5. Reference to court. — For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter sub-sequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. RULE 25: Interrogatories to Parties

Where: 1. 2.

If the testimony is that of the petitioner – the court of the place of his residence; Others – court of the residence of any expected adverse party.



Section 1. Interrogatories to parties; service thereof. — Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. DEPOSITIONS VS. INTERROGATORIES: DEPOSITIONS Deponent is subject to direct and cross-examination (redirect and recross) In oral depositions, notice contains place, time, name of deponent and officer before deposition is to be taken Deponent may be a party or not

No such requirement.

INTERROGATORIES No such types of examination. The form only contains a narrative of questions. The document given to the adverse party already contains the questions. The person to whom the interrogatories are addressed should be a party. Required if you wish to call the adverse party to the witness stand as well as deposition pending appeal.

Section 2. Answer to interrogatories. — The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown, extends or shortens the time. Section 3. Objections to interrogatories. — Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. Section 4. Number of interrogatories. — No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. Section 5. Scope and use of interrogatories. — Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule.

straying or harassing the adverse party when it takes the latter to the stand (Afulugencia vs. Metropolitan Bank & Trust Co.) RULE 26: Admission by Adverse Party Section 1. Request for admission. — At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copy have already been furnished.

Distinguished from actionable documents under Rule 8: the documents under Sec. 1 of Rule 26 are non-actionable documents, this may include voluminous documents, delivery receipts, which are evidentiary matters rather than the basis for the action or defense of a party. Section 2. Implied admission. — Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable.

Upon service of request for admission, the party served may do any of the following acts: (a) he may admit each of the matters of which an admission is requested, in which case, he need not file an answer; (b) he may admit the truth of the matters of which admission is requested by serving upon the party requesting a written admission of such matters within the period stated in the request, which must not be less than ten (10) days after service, or within such further time as the court may allow on motion and notice; (c) he may file a sworn statement. denying specifically the matter of which an admission is requested; or, (d) he may file a sworn statement setting forth in detail the reasons why he cannot truthfully either admit or deny the matters of which an admission is requested.

Section 6. Effect of failure to serve written interrogatories. — Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.

Failure to specifically deny will be deemed an admission: Petitioner failed to submit the required answer within the period. The matters set forth in the request were therefore deemed admitted by petitioner,

General Rule: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Exceptions: unless allowed by court for good cause shown and to prevent a failure of justice.

The burden of affirmative action is on the party upon whom notice is served to avoid the admission rather than upon the party seeking the admission. Hence, when petitioner failed to reply to a request to admit, it may not argue that the adverse party has the burden of proving the facts sought to be admitted. Petitioner's silence is an admission of the facts stated in the request. (Allied Agri-Business Development Co. vs. CA)

Rationale: 1.

2.

To prevent fishing expeditions and needless delays; it is there to maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant result that a prior written interrogatories might bring. By requiring prior written interrogatories, the court may limit the inquiry to what is relevant, and thus prevent the calling party from



If the allegations are deemed admitted, summary judgment may be had: if the adverse party fails to specifically deny by failure to reply to the request to admit, no questions of fact will be in issue since the material allegations of the complaint are not disputed. As such, summary judgment may be properly granted. (Allied Agri-Business Development Co. vs. CA)

Section 3. Effect of admission. — Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 4. Withdrawal. — The court may allow the party making an admission under the Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. Section 5. Effect of failure to file and serve request for admission. — Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. RULE 27: Production or Inspection of Documents or Things Section 1. Motion for production or inspection; order. — Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control, or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.

Production of documents: affords more opportunity for discovery than a subpoena duces tecum as, in the latter, the documents are brought to the

Section 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.

Waiver: where a party examined requests and obtains a report on the results of the examination, the consequences are: 1. He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition; and 2. He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him. RULE 29: Refusal to Comply with Modes of Discovery Section 1. Refusal to answer. — If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees.

court for the first time.

Inspection of land and other real property: avoids the need for ocular inspection by the court.

Criminal Cases: motions for production or inspection of documents are governed by Sec. 10 of Rule 116 and may be availed of only by the accused generally during the pendency of the case. RULE 28: Physical and Mental Examination of Persons Section 1. When examination may be ordered. — In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician.

Patient-physician privilege: Physical and mental examination of person serve as an exception from the privilege, i.e., by order of the court. Moreover, such examination is not necessary to treat or cure the patient but to assess the extent of the injury. Section 2. Order for examination. — The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. Section 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.



If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. Section 2. Contempt of court. — If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. Section 3. Other consequences. — If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 4. Expenses on refusal to admit. — If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (4a) Section 5. Failure of party to attend or serve answers. — If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees. Section 6. Expenses against the Republic of the Philippines. — Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule. RULE 30: Trial Section 1. Notice of Trial. — Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (2a, R22) Section 2. Adjournments and postponements. — A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (3a, R22)

Length of adjournment: no longer than a period of one month for each adjournment nor more than 3 months in all, EXCEPT when authorized in writing by the Court Administrator of the Supreme Court.

Grounds for postponement: 1.

Unavailability of evidence – upon showing the materiality or relevancy of such evidence and that due diligence has been used to procure it. EXCEPT: when the adverse party admits the facts to be given in evidence, the trial shall not be postponed, even if he objects or reserves the right to object to their admissibility. Section 3. Requisites of motion to postpone trial for absence of evidence. — A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, the trial shall not be postponed. (4a, R22; Bar Matter No. 803, 21 July 1998)

2.

Unavailability of party or counsel – illness of party or counsel, when such party’s presence at the trial is indispensable and the character of his illness is such as to render his non-attendance excusable. Section 4. Requisites of motion to postpone trial for illness of party or counsel. — A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or



counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. (5a, R22) Section 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: (a) The plaintiff shall adduce evidence in support of his complaint; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaints; (c) The third-party defendant if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; (d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. (1a, R30)

Reverse Trial: when the defendant or accused (in a criminal case) interposes an affirmative defense (or claims a justifying/exempting circumstance), the order of trial is reversed. E.g., in a criminal proceeding for murder, the accused admitted killing the victim but interposed self-defense. The prosecution need not present evidence to establish that the accused killed the victim since this is already admitted. The accused will present evidence as to the existence of the elements of the justifying circumstance of self-defense. After this, the prosecution need not present evidence in chief, what they will present is rebuttal evidence to destroy the elements of self-defense. Section 6. Agreed statement of facts. — The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (2a, R30) Section 7. Statement of judge. — During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. (3a, R30) Section 8. Suspension of actions. — The suspension of actions shall be governed by the provisions of the Civil Code. (n) Section 9. Judge to receive evidence; delegation to clerk of court. — The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (n) RULE 31: Consolidation or Severance

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 1. Consolidation. — When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated, and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (1)

Purpose: to obtain justice at the least expense and avoid vexation to the

Neither party has an absolute right to have a separate trial of an issue; hence, the motion to that effect should be allowed only to avoid prejudice, further convenience, promote justice, and give a fair trial to all parties GENERAL RULE: is having all the issues in every case tried at one time, since a "single trial will generally lessen the delay, expense, and inconvenience to the parties and the courts."

litigants and avoid multiplicity of suits.

Kinds of Consolidation: In the context of legal procedure, the term "consolidation" is used in three different senses: 1. Quasi-Consolidation: where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. 2. Actual Consolidation: where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. 3. Consolidation for Trial: where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (Republic vs. Heirs of Enrique Oribello Jr.)

Exceptions to the general rule are permitted only when there are: (1) extraordinary grounds for conducting separate trials on different issues raised in the same case, (2) or when separate trials of the issues will avoid prejudice, or (3) when separate trials of the issues will further convenience, or (4) when separate trials of the issues will promote justice, or (5) when separate trials of the issues will give a fair trial to all parties.

(Metropolitan Bank and Trust Company vs. Sandoval) RULE 32: Trial by Commissioner

Commissioner: includes a referee, auditor and an examiner. Where Rules provide for Commissioners: 1. Expropriation cases (Sec. 5 to 8 of Rule 67) 2. Judicial Partition (Sec. 3 to 7 of Rule 69) Matters which may be referred to the Commissioners:

Decision on one case consolidated with others for trial may be appealed separately: In cases consolidated for trial, a decision on one action, which remains separate and distinct from the other, may be appealed separately while the other one is still pending. Severance is not necessary. Since each action does not lose its distinct character, severance of one action from the other is not necessary to appeal a judgment already rendered in one action. (Republic vs. Heirs of Oribello, Jr.)

Consolidation is not a remedy for forum-shopping: the consolidation of cases was never intended to cure the defect of forum-shopping. If one litigant has filed multiple suits involving the same parties for the same cause of action, the consolidation of these suits is not the correct palliative. These suits should instead be dismissed on the ground of forum-shopping. (Mega-Land Resources and Development Corporation vs. Tinga, GR No. 156211, July 31, 2007) Court with the lowest docket number: in cases filed separately, the cases shall be consolidated in the court with the lowest docket number. Where to file motion: in all courts where the actions to be consolidated are pending.

Even if courts are in different locations: in the case of Zulueta vs. Asia Brewery, Inc., the Court allowed consolidation even if one case is in IloIlo and the other one is in Makati. As long as the two cases involving the same parties and affecting closely related subject matters, they must be ordered consolidated and jointly tried in court, where the earlier case was filed. The consolidation of cases is proper when they involve the resolution of common questions of law or facts. Section 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)

Only when clearly necessary and there are special and persuasive reasons: the general practice is to try all the issues in a case at one time; and it is only in exceptional instances where there are special and persuasive reasons for departing from this practice that distinct causes of action asserted in the same case may be made the subjects of separate trials. Whether this reasonably may be done in any particular instance rests largely in the court’s discretion.



1.

Any matter – if reference is made by consent of the parties:

Section 1. Reference by consent. — By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (1a, R33) 2.

Limited – if not made through consent, limited to the following:

Section 2. Reference ordered on motion. — When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2a, R33) ORDER OF THE COURT Section 3. Order of reference; powers of the commissioner. — When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to other specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court. (3a, R33) Section 4. Oath of commissioner. — Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof. (14, R33)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 5. Proceedings before commissioner. — Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) days after the date of the order of reference and shall notify the parties or their counsel. (5a, R33) Section 6. Failure of parties to appear before commissioner. — If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment. (6a, R33) Section 7. Refusal of witness. — The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner. (7a R33) Section 8. Commissioner shall avoid delays. — It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report. (8a, R33) Section 9. Report of commissioner. — Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. (9a, R33) Section 10. Notice to parties of the filing of report. — Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein, set forth, shall not be considered by the court unless they were made before the commissioner. (10, R33) Section 11. Hearing upon report. — Upon the expiration of the period of ten (10) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. (11a, R33) Section 12. Stipulations as to findings. — When the parties stipulate that a commissioner's findings of fact shall be final, only questions of law shall thereafter be considered. (12a, R33) Section 13. Compensation of commissioner. — The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (13, R33) VII. RULE 33 to RULE 36 RULE 33: Demurrer to Evidence Section 1. Demurrer to evidence. — After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (1a, R35)

When filed: after the plaintiff has completed the presentation of his evidence.

Rationale: The defendant is permitted, without waiving his right to offer evidence in the event that his motion is not granted, to move for a dismissal (i.e., demur to the plaintiffs evidence) on the ground that upon the facts as thus established and the applicable law, the plaintiff has shown no right to relief. (Radiowealth Finance Company vs. Sps. Del Rosario) If Reversed, Duty of the Appellate Court: is to render judgment on the merits based on the evidence of the plaintiff; not to remand the case to the trial court for further proceedings. In other words, defendants who present a demurrer to the plaintiff’s evidence retain the right to present their own evidence, if the trial court disagrees with them; if the trial court agrees with them, but on appeal, the appellate court disagrees with both of them and reverses the dismissal order, the defendants lose the right to present their own evidence. The appellate court shall, in addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations. (Radiowealth Finance

Company vs. Sps. Del Rosario) Demurrer in Criminal Cases: Rule 119, Sec. 23. Demurrer to evidence. – 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 (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

Requirements to determine whether the pleading is a demurrer to evidence or motion to dismiss: the Court must consider: 1. 2. 3.

the allegations in it made in good faith; the stage of the proceeding at which it is filed; and the primary objective of the party filing it.

If the accused invokes his right to speedy trial after the prosecution has dragged the case for a long time, even though in his pleading he made remarks as to the insufficiency of evidence, the same cannot be regarded as a demurrer. Moreover, a demurrer assumes that the prosecution has already rested its case. In a case where the prosecution made a formal offer of evidence but the same has not been ruled upon, or even if already ruled upon, but the prosecution has not rested its case, the demurrer would have been improper. (see Cabador vs. People, citing Enojas vs. COMELEC)

If Demurrer is granted: the order granting demurrer to evidence is a resolution of the case on the merits, and amounts to an acquittal. Any further prosecution of the accused would then violate the proscription on double jeopardy. (People vs. Sumingwa)

Effect if Demurrer is DENIED:



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

1. 2.

With Leave of Court: the accused may adduce evidence in his defense. Without Leave of Court: the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence of the prosecution.

if GRANTED - the case is dismissed; order of dismissal is a FINAL order, hence appealable

Leave of Court is DENIED: once leave of court is denied, the only right left to the accused is to present his evidence. Otherwise, if he insists on filing a demurrer after denial of his motion, he loses his right to present evidence on his behalf. (Bernardo vs. CA)

If plaintiff appeals and the appellate court REVERSES - defendant is no longer allowed to present evidence

Remedy if denied: generally, under Sec. 23 of Rule 119, last paragraph, no appeal or certiorari may be had. However, as held in Singian Jr. vs. Sandiganbayan, the resolution of a demurrer to evidence should be left to the exercise of sound judicial discretion. A lower court’s order of denial shall not be disturbed, that is, the appellate courts will not review the prosecution’s evidence and precipitately decide whether such evidence has established the guilt of the accused beyond a reasonable doubt, unless accused has established that such judicial discretion has been gravely abused, there by amounting to a lack or excess of jurisdiction. Mere allegations of such abuse will not suffice. When matters raised in the demurrer are best tackled in a full blown trial, denial of the same is proper: the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits," and "the validity and merits of a party's defense or accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper." Petitioner's claims and defenses in his Demurrer to Evidence can best be tackled during trial. (Singian Jr. vs. Sandiganbayan)

4th Paragraph: no longer applicable since the accused is required to submit the demurrer together with the motion for leave in accordance with Rule 15, Sec. 9.

Discretionary upon the court to grant leave; once denied, presentation of evidence is not discretionary: the grant of a LEAVE is discretionary upon the court. But if the same has been denied, the PRESENTATION OF EVIDENCE is not discretionary. The court no longer has discretion to allow the accused to adduce evidence, the only recourse left is for the court to decide the case on the basis of the evidence presented by the prosecution. (see Bernardo vs. CA) CIVIL VS. CRIMINAL DEMURRER

Similarities: 1.

2. 3. 4.

Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited pleading under the Rules on Summary Proceedings because (1) it is there to similarly expedite the proceedings and (2) it is not among those mentioned under prohibited pleadings; The ground is the same, that is, INSUFFICIENCY OF EVIDENCE; Only available AFTER the presentation of the evidence of the plaintiff or prosecution, as the case may be; Court may either grant or deny the Demurrer

Differences: CIVIL DEMURRER More difficult to file because the plaintiff is only required to present his case by preponderance of evidence

CRIMINAL DEMURRER Easier to file because the prosecution is required to prove the guilt of accused beyond reasonable doubt

If DENIED evidence

if DENIED - distinguish whether there had been prior leave of court (1) if with leave, accused may proceed with presentation of his evidence; (2) if without leave, accused can no longer present his evidence



-

plaintiff

presents

if GRANTED - accused is acquitted; order of acquittal is NOT appealable; otherwise, it will be a violation of his right against double jeopardy

RULE 34: Judgment on the Pleadings Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may; on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (1a, R19)

When may a party ask for a judgment on the pleadings: 1. 2.

When an answer fails to tender an issue; or Admits of the material allegations of the adverse party’s pleading.

Rule 34 speaks of “answer”, does this mean that only a plaintiff may ask for a judgment on the pleadings? No. A defendant may ask for a judgment on the pleadings with regards the answer on permissive counterclaim which likewise requires an answer because allegations therein are deemed controverted.

Judgment on the Pleadings vs. Summary Judgments: JUDGMENT ON THE PLEADINGS Judgment is based solely on the pleadings, i.e., the complaint, the answer and sometimes the reply. Totally bereft of an issue Available in all cases, except annulment of marriage, declaration of nullity and legal separation Requires compliance with the 3-day notice rule

SUMMARY JUDGMENT Judgment is based on the pleadings, affidavits, depositions and admissions. There is an issue, only that the issue is not genuine. Available only in actions to recover debt, for liquidated sum of money or declaratory relief Requires 10-day prior notice

In the Allied case which illustrates a summary judgment, there is a request for admission but the request was never answered. Thus, the admissions sought were deemed admitted and there was no longer an issue. Therefore, a summary judgment was proper. (see Allied Agri-Business case) RULE 35: Summary Judgments Summary or accelerated judgment is a procedural technique aimed at weeding out sham claims or defenses at an early stage of litigation thereby avoiding the expense and loss of time involved in a trial.

When proper: summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact.

Duty of the court is limited to determining whether there is an issue of fact: The aforecited rule does not vest in the trial court jurisdiction to summarily try the issues on depositions and affidavits but gives it limited authority to render summary judgment only when there is no genuine issue of material fact at bar. Upon a motion for summary judgment, the sole function of the court is to determine whether or not there is an issue of fact to be tried. (Garcia vs. CA)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Requisites: For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no genuine issue as to any material fact, except for the amount of damages; and (b) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. (Smart Communications vs. Aldecoa)

1st Requisite: Genuine Issue: is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial. (PBCom vs. Go) When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to any fact and summary judgment called for. On the other hand, where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The evidence on record must be viewed in light most favorable to the party opposing the motion who must be given the benefit of all favorable inferences as can reasonably be drawn from the evidence. (Smart

Communications vs. Aldecoa) 2nd Requisite: Entitled as a matter of right: Conclusory assertions are insufficient to raise an issue of material fact. A party cannot create a genuine dispute of material fact through mere speculations or compilation of differences. He may not create an issue of fact through bold assertions, unsupported contentions and conclusory statements. He must do more than rely upon allegations but must come forward with specific facts in support of a claim. Where the factual context makes his claim implausible, he must come forward with more persuasive evidence demonstrating a genuine issue for trial. (Smart Communications vs. Aldecoa) Section 1. Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. (1a, R34) Section 2. Summary judgment for defending party. — A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. (2a, R34) Section 3. Motion and proceedings thereon. — The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (3a, R34) Section 4. Case not fully adjudicated on motion. — If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (4a, R34) Section 5. Form of affidavits and supporting papers. — Supporting and opposing affidavits shall be made on personal knowledge, shall set



forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5a, R34) Section 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur including attorney's fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt. (6a, R34) RULE 36: Judgments, Final Orders and Entry Thereof

Final Judgment vs. Interlocutory Order: A final order is one which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined. An order or judgment is deemed final if it finally disposes of, adjudicates, or determines the rights, or some right or rights of the parties, either on the entire controversy or on some definite and separate branch thereof, and concludes them until it is reversed or set aside. Where no issue is left for future consideration, except the fact of compliance with the terms of the order, such order is final and appealable. In contrast, an order is interlocutory if it does not finally dispose of the case. (Augusto vs. Risos)

Final vs. Executory Judgment: A judgment may be final but not executory but once a judgment is executory is must necessarily be final, because a final judgment is one where the trial court is left with nothing else to do. The court has completed its task and the case has been disposed. But it is not yet executory because the period to appeal or to reconsider or to retry the case has not expired yet. Only after the expiration of the period for new trial, reconsideration or appeal will the judgment become final and executory. In Rule 36, the final order referred to in here is executory not just final.

Immutability of final judgment: a decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law; and whether it will be made by the court that rendered it or by the highest court in the land. The only exceptions to this rule are the correction of: 1. Clerical errors, 2. The so-called nunc pro tunc entries which cause no prejudice to any party – a correction based on the records of the case; and 3. Void judgments. Section 1. Rendition of judgments and final orders. — A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. (1a)

Requirements for a valid judgments: 1. 2. 3. 4.

It must be in writing; The judgment must be personally and directly written and signed by the judge; The judgment must be entered. Because a judgment which is not entered has only become final but not executory. That every judgment must state the facts and the law on which its disposition was anchored and based.

The above requirements are not only procedural but likewise constitutional. Section 2. Entry of judgments and final orders. — If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, within a certificate that such judgment or final order has become final and executory. (2a, 10, R51)

“The date of finality of the judgment or final order shall be deemed to be the date of its entry”: It means that when the judgment has become executory, the date where the judgment has become executory shall be the date of its entry. (see Sec. 10 of Rule 51)

Entry of judgment: An entry of judgment is the recording of the judgment by the clerk of court in the book of entries of judgment. If the judgment was rendered by the RTC Manila on January 5, 2005, let us assume that all the parties to that case received a copy of the judgment on January 10, so the parties have until January 25 (15 days) to file Motion for New Trial, Motion for Reconsideration, or Appeal. After January 25, the judgment has become executory. If the clerk of court entered or recorded the judgment on May 15, 2007, the entry of judgment is January 26. This is what’s meant by the second sentence of Section 2, so the judgment was entered January 265 and not March 15.

action shall proceed as to the remaining claims. In case a separate judgment is rendered the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (5a)

Execution of Several and Separate Judgments: is discretionary upon the court and may be done only with leave of court, under Sec. 2(b) of Rule 39, not as a matter of right. Section 6. Judgment against entity without juridical personality. — When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. (6a) REMEDIES AGAINST A FINAL JUDGMENT NOT YET EXECUTORY: 1. 2. 3.

New Trial and Reconsideration

Rationale: if the actual recording is the reckoning date, the finality of judgment and its executory character will depend upon the will of the clerk of court.

Importance of date of entry of judgment: It is very important because there are procedural actions which is counted from its entry of judgment. Examples: Judgment can be executed only by motion within a period of 5 years from entry of judgment. Petition for Relief can only be done within a period of 6 months from entry of judgment.

Kinds of Judgment: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

Judgment upon compromise; Judgment upon confession; Judgment upon the merits; Clarificatory judgment; Judgment non pro tunc (now for then); Judgment sin perjuicio; Judgment by default (Sec. 3, Rule 9); Judgment on the pleadings (Rule 34); Summary judgment (Rule 35); Several judgment (Sec. 4, Rule 36); Separate judgment (Sec. 5, Rule 36); Special judgment (Sec. 11, Rule 39); Judgment for specific acts (Sec. 10, Rule 39); Judgment on demurrer to evidence (Rule 33); Conditional judgment; Judgment by default; and Final judgment.

Section 3. Judgment for or against one or more of several parties. — Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. (3) Section 4. Several judgments. — In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. (4) Section 5. Separate judgments. — When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the



Motion for New Trial (Rule 37) Motion for Reconsideration (Rule 37) Appeal (Rule 40 to 45)

RULE 37: New Trial or Reconsiderations Section 1. Grounds of and period for filing motion for new trial or reconsideration. — Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law. (1a)

When: this is the remedy of the judgment obligor after the judgment has become final but not executory.

Period: The above provision provides that the motion may be filed “within the period for taking an appeal.” As such, it may be filed 15 days in case appeal is by notice of appeal; or 30 days in case by record of appeal, in both cases reckoned from receipt or notice of judgment. Motion for Reconsideration: when mandatory: generally a motion for reconsideration is not mandatory, except in cases of special civil action on certiorari. Thus, it is not an indispensable requirement to avail of the remedy of appeal. Grounds for a Motion for Reconsideration: 1. 2. 3.

Excessive award of damages; Evidence is insufficient to justify the decision or final order; or Decision or final order is contrary to law.

Grounds for a Motion for New Trial: 1.

2.

Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.

In criminal proceedings, the grounds do not include FAME under Rule 121:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 2. Grounds for a new trial. — The court shall grant a new trial on any of the following grounds: (a) The errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) The new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. (2a) Section 3. Ground for reconsideration. — The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings. (3a)

5.

there is a failure to utilize available discovery procedures. (see

Mendezona vs. Ozamis) GRANT OF MOTION FOR NEW TRIAL/RECONSIDERATION: Section 6. Effect of granting of motion for new trial. — If a new trial is granted in accordance with the provisions of this Rules the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (5a)

Effect if Motion for New Trial is GRANTED: Ground for reconsideration is used in a motion for new trial: the motion may be treated as one of reconsideration, and vice versa.

1. 2.

FAME:

Motion for Reconsideration: judgment is not set aside, but the dispositive

When negligence is excusable: There is no hard and fast rule. As to

portion, since the grounds for a motion for reconsideration is more of an amendment in the dispositive portion.

subject matter, if the same is not that serious. As such, the procedural rules should not be a deterrent to the proper administration of justice and must give way to the substantive rights of individuals.

Mistake: refers to mistake of fact and not mistake of law. This is because mistake of law amounts to ignorance of the law. As such, to be a ground for new trial, the mistake must be that of fact or misappreciation of facts.

Accident: those unforeseen, unexpected, or sudden occurrences. Fraud: refers to extrinsic fraud. Extrinsic fraud connotes any fraudulent scheme executed by a prevailing party outside of the trial against the losing party who because of such fraud is prevented from presenting his side of the case; while an intrinsic fraud refers to acts of a party during the trial which does not affect the presentation of the case.

Previous judgment is vacated; Previously admitted evidence remain; no need for retaking them.

SECOND MOTION FOR NEW TRIAL/RECONSIDERATION: Section 5. Second motion for new trial. — A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order (4a, 4, IRG)

Second Motion for Reconsideration: Generally not allowed, except in the Supreme Court which can grant even upto a third motion for reconsideration.

Example: Extrinsic Fraud: If A (witness) was paid not to appear before the court for trial. Intrinsic fraud: When the signature of the party was forged.

The rule rests on the basic tenet of immutability of judgments. "At some point, a decision becomes final and executory and, consequently, all litigations must come to an end." (McBurnie s. Ganzon)

Why intrinsic fraud is not a ground for new trial: Because you should have

This is because all the grounds are already existent at the time of filing of the first motion for reconsideration, as such it should no longer be allowed following the Omnibus Motion Rule.

questioned it right there and then but you did not. So you waive your right. For example, during the proceeding, the other party presents a forged document or a fictitious document and it was admitted. Because right there and then you should have questioned it but because you didn't question it the evidence has been admitted, you have considered to have waived your right.

Newly discovered evidence: requisites: 1. 2. 3.

The evidence had been discovered after trial; The evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence: and The evidence is material and not merely corroborative, cumulative or impeaching and is of such weight that if admitted, would probably alter the result. (see Mendezona vs. Ozamis, People vs. Li Ka Kim)

What is material for newly discovered evidence is availability. Such that, if the same was already available at the time of trial, this is not newly discovered evidence but a newly procured one, not a ground for new trial.

Second for Motion for New Trial: Ground: only on newly-discovered evidence. FAME cannot be a ground for a second motion for new trial since they were already present or forms part of the proceeding at the time the first motion was filed. Again, the second motion based on FAME should not be allowed following the Omnibus Motion Rule. When you file a motion for new trial on the ground of newly-discovered evidence for the first time, FAME was already existent. But if you file a motion for new trial on the ground of FAME, for the first time and it was denied, it is possible that you will still file a second motion for new trial on the ground of newly-discovered evidence.

Second or Third Motion before the SC: 1.

GENERAL RULE: second and subsequent motions for reconsideration are prohibited. (Section 2, Rule 52 of the Rules of Court)

2.

EXCEPTION: the present Internal Rules of the Supreme Court, particularly Section 3, Rule 15 thereof, provides:

Lack of diligence to procure evidence: is exhibited where 1.

2.

3.

4.

the newly discovered evidence was necessary or proper under the pleadings, and its existence must have occurred to the party in the course of the preparation of the case, but no effort was made to secure it; there is a failure to make inquiry of persons who were likely to know the facts in question, especially where information was not sought from coparties; there is a failure to seek evidence available through public records; there is a failure to discover evidence that is within the control of the complaining party; there is a failure to follow leads contained in other evidence; and,



Sec. 3. Second motion for reconsideration. ― The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration. SPECIFIC ILLUSTRATIONS WHEN THE SUPREME COURT ALLOWED A THIRD OR FOURTH MOTION FOR RECONSIDERATION: 1. In Tirazona v. Philippine EDS Techno-Service, Inc. (PET, Inc.), we also explained that a second motion for reconsideration may be allowed in instances of "extraordinarily persuasive reasons and only after an express leave shall have been obtained." 2. In Apo Fruits Corporation v. Land Bank of the Philippines, we allowed a second motion for reconsideration as the issue involved therein was a matter of public interest, as it pertained to the proper application of a basic constitutionally-guaranteed right in the government’s implementation of its agrarian reform program. 3. It is also recognized that in some instances, the prudent action towards a just resolution of a case is for the Court to suspend rules of procedure, for "the power of this Court to suspend its own rules or to except a particular case from its operations whenever the purposes of justice require it, cannot be questioned." (De

Guzman vs. Sandiganbayan) 4. 5.

In Munoz v. CA, the Court resolved to recall an entry of judgment to prevent a miscarriage of justice. In Barnes v. Judge Padilla, we ruled:

A final and executory judgment can no longer be attacked by any of the parties or be modified, directly or indirectly, even by the highest court of the land. However, this Court has relaxed this rule in order to serve substantial justice considering (a) matters of life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby

Consistent with the above, the Supreme Court, in some instances have reconsidered decisions even when they have attained FINALITY.

Once a leave to file a second motion for reconsideration is granted, it must be resolved. The same is no longer a prohibited pleading: the Supreme Court’s resolve to grant, and not just merely note, in a Resolution, the motion for leave to submit a second motion for reconsideration already warranted a resolution and discussion of the motion for reconsideration on its merits. (McBurnie vs. Guanzon) Contents of Motion: Section 2. Contents of motion for new trial or reconsideration and notice thereof. — The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motion. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. A motion for reconsideration shall point out a specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law making express reference to the



testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a) Section 3. Action upon motion for new trial or reconsideration. — The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. (3a) Section 4. Resolution of motion. — A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. (n) Section 7. Partial new trial or reconsideration. — If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than an of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (6a) Section 8. Effect of order for partial new trial. — When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. (7a)

Appeal 1. 2. 3. 4. 5. 6.

Rule Rule Rule Rule Rule Rule

40: 41: 42: 43: 44: 45:

Appeal from MTC to the RTC Appeal from the RTC Petition for Review from the RTC to the CA Appeals from Quasi-Judicial Agencies to the CA Ordinary Appealed Cases to the CA Appeal by Certiorari

RULE 40: Appeal From Municipal Trial Courts to the Regional Trial Courts Section 1. Where to appeal. — An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (a) Notice of Appeal vs. Record on Appeal

How to Appeal

Period When Perfected As to the Appellant Loss of Jurisdiction of the trial court

Notice of Appeal by filing a notice of appeal with the court that rendered the judgment or final order 15 days from notice Upon filing of the notice of appeal

Record on Appeal By filing a record on appeal before the court that rendered the judgment. 30 days from notice Upon approval of the record on appeal

Upon perfection of the appeal AND the expiration of the time to appeal

Only over the subject matter appealed upon approval of record on appeal and the expiration of the period to appeal

Perfection of Appeal:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 4. Perfection of appeal; effect thereof. — The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41. (n) Rule 41, Section 9. Perfection of appeal; effect thereof. — A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the appeal of the other parties. In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the appeal. (9a) Docket Fees: Section 5. Appellate court docket and other lawful fees. — Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be. (n)

To whom paid: clerk of court which rendered the judgment or final order appealed from. APPEAL FROM ORDERS OF THE MTC DISMISSING THE CASE FOR LACK OF JURISDICTION: Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. — If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (n) When the RTC may treat the appeal as an action originally filed before it: 1. In case the RTC affirms the dismissal of the action before the lower court on the ground of lack of jurisdiction without a trial on the merits and it has jurisdiction over the case. In case the RTC reverses the lower court, the case shall be remanded. 2.

In case the action was dismissed on the merits before the lower court who did not have jurisdiction over the subject matter and the RTC has original jurisdiction thereof.



Other Provisions: Section 6. Duty of the clerk of court. — Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court shall transmit the original record or the record on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall be furnished the parties. (n) Section 7. Procedure in the Regional Trial Court. — (a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant's memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal. (c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of original and such memoranda as are filed. (n) Section 9. Applicability of Rule 41. — The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule. (n) RULE 41: Appeal From The Regional Trial Courts Section 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (MPIASESD) (a) An order denying a motion for new trial or reconsideration (removed under AM No. 7-7-12-SC); (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (n) MODES OF APPEAL: Section 2. Modes of appeal. — (a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

appeals where law on these Rules so require. In such cases, the record on appeal shall be filed and served in like manner.

as a mere scrap of paper, and under the last paragraph of Sec. 2, Rule 37, does not toll the reglementary period of appeal.

(b) Petition for review. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

1.

How to Appeal; Ordinary Appeals; Contents:

Section 5. Notice of appeal. — The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed from, specify the court to which the appeal is being taken, and state the material dates showing the timeliness of the appeal. (4a)

(c) Appeal by certiorari. — In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with the Rule 45. (n)

Erroneous Appeal/Improper Mode of Appeal: the following shall be caused for dismissal of the appeal taken from the decision of the RTC: 1. When an appeal raises ONLY questions of law and the same is filed with the CA; 2. An appeal by notice of appeal instead of a petition for review from the appellate jurisdiction of the RTC. Note that the above appeals shall be dismissed and are not to be transferred or remanded as provided under Rule 50, Section 2.

When Record on Appeal applicable: 1.

Special Proceedings Examples: a. Settlement of Estates where every stage may be final and complete in itself and is thus appealable while other parts of the proceedings are left in the trial court. Like probate of a will or appointment of executor or administrator. b.

Partition, even though the actual partition is still pending, the determination of co-ownership may be appealed.

c.

Expropriation proceedings, where the determination of the just compensation is still pending, the right or propriety of exercise of the right to expropriate may already be the subject of an appeal.

Note, however, that in the final proceedings, like distribution and partition in the case of settlement of estates, the appeal is by notice of appeal, where all the records are transmitted to the appellate court. This is because the proceedings are at its finality and all portions are already determined. 2.

Other cases of multiple or separate appeals.

Why called record on appeal: because only the portion of the record relevant to that appealed are transmitted to the appellate court, unlike in notice of appeal, where the entire record is transmitted. Section 3. Period of ordinary appeal. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (n) Fresh Period Rule: an ordinary appeal from the RTC to the Court of Appeals, under Section 3 of Rule 41 of the Rules of Court, shall be taken within fifteen (15) days either from: 1. Receipt of the original judgment of the trial court or 2. Receipt of the final order of the trial court dismissing or denying the motion for new trial or motion for reconsideration. (Manaloto vs. Veloso

III) Note, however, that this rule applies only to a motion for reconsideration/new trial that is validly filed, i.e., contains all the requirements under Sec. 2 of Rule 37. Otherwise, it may be treated as a pro forma motion, which is considered



Notice of Appeal

2.

Record on Appeal Section 6. Record on appeal; form and contents thereof. — The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and it shall include the judgment or final order from which the appeal is taken and, in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits. Every record on appeal exceeding twenty (20) pages must contain a subject index. (6a)

PERFECTION OF APPEAL: Section 9. Perfection of appeal; effect thereof. — A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the appeal of the other parties. In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the appeal. (9a) OTHER PROVISIONS: Section 4. Appellate court docket and other lawful fees. — Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. (n)

To whom payment is made: to the clerk of court which rendered the judgment or final order appealed from.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Unlike in a Petition for Review and an Appeal by Certiorari where the payment of the docket fees is with the Court of Appeals. Section 7. Approval of record on appeal. — Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may approve it as presented or upon its own motion or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. (7a) Section 8. Joint record on appeal. — Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this Rule, or that fixed by the court. (8a) Section 10. Duty of clerk of court of the lower court upon perfection of appeal. — Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court: (a) To verify the correctness of the original record or the record on appeal, as the case may be aid to make certification of its correctness; (b) To verify the completeness of the records that will be, transmitted to the appellate court; (c) If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose; and (d) To transmit the records to the appellate court. If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that could be taken to have them available. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (10a)

evidence shall remain in the lower court for the examination of the parties. (11a) Section 13. Dismissal of appeal. — Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu propio or on motion dismiss the appeal for having been taken out of time. (14a) RULE 42: Petition for Review From the Regional Trial Courts to the Court of Appeals Section 1. How appeal taken; time for filing. — A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n)

How to Appeal; Where to File: while in ordinary appeal, a notice or record of appeal is filed with the court that rendered the decision, an appeal via a petition for review is done by filing a verified petition with the Court of Appeals. This is similar to a complaint but with “assignment of errors”. (Brondial, 2016)

Issues which may be raised: questions of fact and law, similar to ordinary appeal. If only questions of law, the remedy should be appeal by certiorari. When applicable: on matters decided by the RTC in the exercise of its appellate jurisdiction. Where to pay docket fees: with the Court of Appeals. Unlike in ordinary appeal where the docket fees are paid to the clerk of court of the court which rendered the judgment or final order appealed from.

Period of Filing: 15 days from notice of the decision sought to be reviewed How completeness and correctness is checked? By referring to the footnotes and reference to the records which should be chronologically numbered starting from the complaint. Section 11. Transcript. — Upon the perfection of the appeal, the clerk shall immediately direct the stenographers concerned to attach to the record of the case five (5) copies of the transcripts of the testimonial evidence referred to in the record on appeal. The stenographers concerned shall transcribe such testimonial evidence and shall prepare and affix to their transcripts an index containing the names of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits and the pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same in the order in which the witnesses testified at the trial, and shall cause the pages to be numbered consecutively. (12a) Section 12. Transmittal. — The clerk of the trial court shall transmit to the appellate court the original record or the approved record on appeal within thirty (30) days from the perfection of the appeal, together with the proof of payment of the appellate court docket and other lawful fees, a certified true copy of the minutes of the proceedings, the order of approval, the certificate of correctness, the original documentary evidence referred to therein, and the original and three (3) copies of the transcripts. Copies of the transcripts and certified true copies of the documentary



or of the denial of petitioner’s motion for new trial or reconsideration.

Extension: The CA may grant an additional 15 days subject to a proper motion and payment of docket fees and deposit for costs before the expiration of the reglementary period. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. FAILURE TO COMPLY WITH REQUIREMENTS: Section 3. Effect of failure to comply with requirements. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (n) PERFECTION OF APPEAL: Section 8. Perfection of appeal; effect thereof. — (a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41) (b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. (a) OTHER PROVISIONS: Section 2. Form and contents. — The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (n)

having been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition. (n) Section 7. Elevation of record. — Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within fifteen (15) days from notice. (n) Section 9. Submission for decision. — If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself. (n) RULE 43: Appeals From the Court of Tax Appeals* and Quasi-Judicial Agencies to the Court of Appeals * Court of Tax Appeals: is no longer included in the list by virtue of RA No. 9282 which places the CTA on the same level as the CA. CONTENTS OF THE PETITION: Section 6. Contents of the petition. — The petition for review shall (a) state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved and the grounds relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers; and (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. The petition shall state the specific material dates showing that it was filed within the period fixed herein. (2a)

Requirements: 1. 2. 3. 4. 5.

Section 4. Action on the petition. — The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too insubstantial to require consideration. (n)

Verification; Certification against forum shopping; Proof of service; Explanation if not served personally; Attachment of the pertinent pleadings and the decision, which must be certified true copies Under Rule 42, only the order needs to be a certified true copy, while in Rule 43, all pleadings must be certified true copies since quasi-judicial agencies are not part of the judicial system and must thus be authenticated.

Actions by the CA: 1. 2.

Require the respondent to file a comment, not a motion to dismiss; Dismiss the petition if it finds the same: a. To be patently without merit; b. Prosecuted manifestly for delay; or c. That the questions raised therein are to unsubstantial to require consideration

Section 5. Contents of comment. — The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall (a) state whether or not he accepts the statement of matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in petitioner's statement of matters involved but without repetition; and (c) state the reasons why the petition should not be given due course. A copy thereof shall be served on the petitioner. (a) Section 6. Due course. — If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading



ACTION ON PETITION: Section 8. Action on the petition. — The Court of Appeals may require the respondent to file a comment on the petition not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (6a)

Actions by the CA: similar to a petition for review under Rule 42 (Sec. 4): 1. 2.

Require the respondent to file a comment, not a motion to dismiss; Dismiss the petition if it finds the same: a. To be patently without merit; b. Prosecuted manifestly for delay; or d. That the questions raised therein are to unsubstantial to require consideration.

EFFECT OF APPEAL:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 12. Effect of appeal. — The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. (10a)

What if the judgment was executed: it will not render the appeal moot and academic, and if reversed, the appellant shall be entitled to damages. OTHER PROVISIONS: Section 1. Scope. — This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Invention Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (n)

Enumeration: provided under Section 1 are not exclusive. (Land Bank of the Philippines vs. De Leon) Other Agencies/Tribunals not covered by the Rule aside from the NLRC: 1. 2. 3.

Commission on Audit; Commission on Elections; Sandiganbayan

Decisions from the above agencies/tribunals are directly appealable to the SC. The first two being under Rule 64. Section 2. Cases not covered. — This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. (n)

Labor Code: decisions by the NLRC are not covered by this Rule and are thus not considered appealable to the CA. The remedy of the aggrieved party would be to file for a special civil action for certiorari under Rule 65.

Filed with the CA: despite the RTC and the CA having concurrent jurisdiction over special civil actions for certiorari, such action directed against decisions of the NLRC should be filed with the CA. This is because the RTC is of the same level as that of the NLRC. But still, not directly with the SC by virtue of the principle of hierarchy of courts.

Intracorporate disputes: in decisions rendered by the RTC as a commercial court in intracorporate disputes is appealable to the CA via a Petition for Review under this Rule (Rule 43) and not ordinary appeal under Rule 41).

RTC as Agrarian Court: the decision of the RTC as a special agrarian reform court is appealable by Petition for Review with the CA, not by ordinary appeal. Section 60 of RA 6657 clearly and categorically states that the said mode of appeal should be adopted. (Land Bank of the Philippines vs. De Leon)

Decision of the Provincial Agrarian Reform Adjudication Board – is appealable to the DARAB before the CA via a Petition for Review.

Decision of the DARAB is reviewable by the CA not the RTC: where legislation provides for an appeal from decisions of certain administrative bodies to the CA, it means that such bodies are co-equal with the RTC, in terms of rank and stature, and logically, beyond the control of the latter. Given that DARAB decisions are appealable to the CA, the inevitable conclusion is that the DARAB is a co-equal body with the RTC and its decisions



are beyond the RTC's control. (Springfield Development Corporation, Inc. vs.

RTC of Misamis Oriental) ORABLE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF OTHER PROVISIONS: Section 3. Where to appeal. — An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (n) Section 4. Period of appeal. — The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n) Section 5. How appeal taken. — Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial. (n) Section 7. Effect of failure to comply with requirements. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (n) Section 9. Contents of comment. — The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall (a) point out insufficiencies or inaccuracies in petitioner's statement of facts and issues; and (b) state the reasons why the petition should be denied or dismissed. A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals. (9a) Section 10. Due course. — If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. (n) Section 11. Transmittal of record. — Within fifteen (15) days from notice that the petition has been given due course, the Court of Appeals may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. The record to be transmitted may be abridged by agreement of all

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

parties to the proceeding. The Court of Appeals may require or permit subsequent correction of or addition to the record. (8a) Section 13. Submission for decision. — If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court of Appeals. (n) Procedure in the Court of Appeals RULE 44: Ordinary Appealed Cases APPELLANT’S BRIEF: Section 7. Appellant's brief. — It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. (10a, R46) Section 13. Contents of appellant's brief. — The appellant's brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; (b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; (c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy with page references to the record; (d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; (e) A clear and concise statement of the issues of fact or law to be submitted, to the court for its judgment; (f) Under the heading "Argument," the appellant's arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; (g) Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and (h) In cases not brought up by record on appeal, the appellant's brief shall contain, as an appendix, a copy of the judgment or final order appealed from. (16a, R46) APPELLEE’S BRIEF: Section 8. Appellee's brief. — Within forty-five (45) days from receipt of the appellant's brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. (11a, R46) Section 14. Contents of appellee's brief. — The appellee's brief shall contain, in the order herein indicated the following: (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; (b) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellant's brief, or under the heading "Counter-Statement of Facts," he shall point out such



insufficiencies or inaccuracies as he believes exist in the appellant's statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant's statement of facts; and (c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. (17a, R46) OTHER PROVISIONS: Section 1. Title of cases. — In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (1a, R46) Section 2. Counsel and guardians. — The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court. (2a, R46) Section 3. Order of transmittal of record. — If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal. (3a, R46) Section 4. Docketing of case. — Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. (4a, R46) Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with the proof of service of two (2) copies thereof upon the appellee. Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for dismissal of the appeal. (n) Section 5. Completion of record. — Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform said court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. (n) Section 6. Dispensing with complete record. — Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. (n) Section 9. Appellant's reply brief. — Within twenty (20) days from receipt of the appellee's brief, the appellant may file a reply brief answering points in the appellee's brief not covered in his main brief. (12a, R46) Section 10. Time of filing memoranda in special cases. — In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. (13a, R46) The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. (n)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 11. Several appellants or appellees or several counsel for each party. — Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. (14a, R46) Section 12. Extension of time for filing briefs. — Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. (15, R46) Section 15. Questions that may be raised on appeal. — Whether or not the appellant has filed a motion for new trial in the court below he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. (18, R46) RULE 45: Appeal by Certiorari to the Supreme Court

Distinguished from Rule 65: Rule 45 is a mode of appeal, while certiorari under Rule 65 is a special civil action (an original action).

Time to file: An appeal by certiorari is to be filed within 15 days, unlike a petition for certiorari under Rule 65 which can be filed within 60 days from receipt of the judgment or final order. Extension: is available under Rule 45 for compelling reasons for a period of 30 days, while under Rule 65, no such extension of time is available. Motion for Reconsideration: is not required before filing a Rule 45, while in Rule 65, it is generally required. How appeal is taken: by filing a petition not a notice of appeal, with the same requirements as under Rule 42.

MTC: cases decided by the MTC, even if purely of questions of law, is still appealable to the RTC, not to the SC.

Sandiganbayan: to the SC, a petition for review on certiorari is filed only if the penalty is NOT death, life imprisonment or reclusion perpetua.

Court of Tax Appeals: may be appealed to the SC via a petition for review

(e) when the factual findings are conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee (g) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and, (h) where the findings of fact of the Court of Appeals are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. (PAL vs. CA)

Findings of the trial court as affirmed by the CA are generally binding: In a petition for review on certiorari under Rule 45, this Court reviews only errors of law and not errors of facts. The factual findings of the appellate court are generally binding on this Court. This applies with greater force when both the trial court and the Court of Appeals are in complete agreement on their factual findings. (Sps. Alfredo vs. Sps. Borras) Findings of the trial court are accorded great respect, if not conclusive. However, this principle does not apply if the trial court ignored, misunderstood or misconstrued cogent facts and circumstances of substance which, if considered, would alter the outcome of the case. (People vs. Corpuz)

When questions of fact may be raised as provided in the Rules: in cases of prerogative writs, such as a Writ of Amparo (Sec. 19 on the Rule on the Writ of Amparo), Writ of Habeas Data (Sec. 19 on the Rule on the Writ of Habeas Data) and Writ of Kalikasan (Sec. 16, Rule 7: Writ of Kalikasan). In such cases, the appeal may raise both questions of fact and law.

Availability of an appeal by certiorari forecloses the right to resort to a special civil action for certiorari: a special civil action for certiorari is a limited form of review and a remedy of last resort, which lies only when there is no appeal or plain, speedy and adequate remedy in the ordinary course of law. A petition for review on certiorari under Rule 45 and a petition for certiorari under Rule 65 are mutually exclusive remedies. Certiorari cannot co-exist with an appeal or any other adequate remedy. Rule 65 is not a remedy for a lost appeal. (Estinozo vs. CA)

on certiorari. But only those decided by the CTA en banc.

Grant of a Motion to Dismiss is subject of an appeal, petition for certiorari: The fact that the order granting the motion to dismiss was a final

Evidence Test Rule: Questions of Fact vs. Questions of Law:

order for thereby completely disposing of the case, leaving nothing more for the trial court to do in the action, truly called for an appeal, instead of certiorari, as the correct remedy. (Heirs of Sps. Reterta vs. Mores)

1.

2.

Question of Law: if there is no need to establish a fact by evidence or the existence or non-existence of a law; or if one is called upon to determine what the law is and its applicability to a particular situation. Question of Fact: if evidence is necessary to establish to existence or non-existence of certain matters in a case.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. (Latorre vs. Latorre) GENERAL RULE: only questions of law may be raised by the parties and passed upon by the Supreme Court. Factual findings of the appellate court are generally binding on the SC especially when in complete accord with the findings of the trial court. This is because it is not the SC’s function to analyze or weigh the evidence all over again. EXCEPTIONS: (a) where there is grave abuse of discretion; (b) when the finding is grounded entirely on speculations, surmises or conjectures; (c) when the inference made is manifestly mistaken, absurd or impossible; (d) when the judgment of the Court of Appeals was based on a misapprehension of facts;



Note, however, that under Rule 41, Sec. 1(g), an order dismissing an action without prejudice cannot be the subject of an appeal. Thus, Certiorari under Rule 65 may not lie if the dismissal is based on the following grounds: 1. Res judicata; 2. Prescription; 3. That the claim has been paid, waived, abandoned or otherwise extinguished; 4. That the claim is unenforceable under the statute of frauds. CONTENTS OF PETITION: Section 4. Contents of petition. — The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (2a) REQUIREMENTS: Section 7. Pleadings and documents that may be required; sanctions. — For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. (n) OTHER PROVISIONS: Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals (as amended by AM No. 7-7-12-SC) the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (1a, 2a)

probably not in accord with law or with the applicable decisions of the Supreme Court; or (b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. (4a) Section 8. Due course; elevation of records. — If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. (2a) Section 9. Rule applicable to both civil and criminal cases. — The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (n) RULE 46 to 49 ORIGINAL ACTION: the Court of Appeals do not have original jurisdiction over ORDINARY civil cases. However, the following actions may be originally filed with the CA: 1. Annulment of Judgment of the RTC; 2. Special Civil Actions, e.g., certiorari, mandamus and prohibition and quo warranto.

Summons: even if an original action is filed with the CA, it does not issue

Cases decided by the Court of Tax Appeals: division is appealable to the

summons. Instead, it issues a resolution requiring the other party to comment. EXCEPT: in annulment of judgment, but not outright, only upon determination of a prima facie case, the absence of which, the CA may dismiss the same outright.

CTA en banc, before it can be the subject of an Appeal by Certiorari to the Supreme Court.

Jurisdiction over respondent: under Sec. 4, the CA acquires jurisdiction

Section 2. Time for filing; extension. — The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (1a, 5a) Section 3. Docket and other lawful fees; proof of service of petition. — Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy, thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. (1a) Section 5. Dismissal or denial of petition. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

over original cases: 1. Upon showing receipt of the resolution of the court; 2. Upon voluntary submission to the jurisdiction of the court;

Hearing: the Court of Appeals conducts a hearing on the case similar to the RTC. However, it can direct the trial court to receive evidence and submit a report on the same. The Supreme Court may likewise direct the Court of Appeals to receive evidence and submit a report thereon in cases directly filed with the SC, like an application for a Writ of Kalikasan.

Trial: in annulment of judgments, the CA likewise conducts a trial where witnesses and evidence are presented.

Preliminary Conference: before the trial court and a clerk of court is different with a preliminary conference with the CA under Rule 48, which is more similar to a pre-trial and applicable whether in an original or an appealed case. Under Rule 50, if the petitioner is not present in the preliminary conference, the case may be dismissed.

Rule 49: Oral Arguments: may be allowed only in original actions and limited to the matters as may be specified by the court.

The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (3a)

Notice of Hearing on Motions: under Sec. 3 of Rule 49, hearings in the

Section 6. Review discretionary. — A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons thereof. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way

Supreme Court Procedures: are similar to the Court of Appeals, as such,



Court of Appeals are only scheduled by the court (similar to the SC) not by the party. As such, no notice of hearing is required in the CA since no hearing shall be allowed therefor.

the above rules are likewise applicable to original and appealed cases to the SC, except rules on ordinary appeal. GROUNDS FOR DISMISSAL OF APPEAL RULE 50:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. 803, 17 February 1998) (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. (1a)

Material Data Rule: the absence of material data may be a ground for dismissing an appeal, such as, when the judgment was received, when the motion for reconsideration was filed, when the order of denial or grant of the motion for reconsideration was received, issues, errors, etc.

Section 5 of Rule 56: Procedures in the Supreme Court: Section 5. Grounds for dismissal of appeal. — The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; (e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause; (f) Error in the choice or mode of appeal; and (g) The fact that the case is not appealable to the Supreme Court. Section 2. Dismissal of improper appeal to the Court of Appeals. — An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. (n) An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (3a) Section 6 of Rule 56: Section 6. Disposition of improper appeal. — Except as provided in section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed.

Motion to dismiss on the ground of material data rule is filed with the court a quo: the lower court should order the amendment and completion thereof. This is different from the rule where the motion to dismiss was filed in the appellate court (Ozaeta Jr. vs. CA) as the provisions of Sec. 6, Rule 41 are principally intended for the appellate courts. (Tanalega vs.

Tizon)

An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final. (n)

Other grounds for dismissal of an appeal: 1. 2. 3.

By agreement of the parties, as where the case was amicably settled by them; Where the appealed case has become moot or academic; Where the appeal is frivolous.

Page References are not indicated: Sec. 13 (a), (c), (d) and (f) of Rule 44: Section 13. Contents of appellant's brief. — The appellant's brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; xxx (c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy with page references to the record; (d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; xxx (f) Under the heading "Argument," the appellant's arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; xxx



Section 3. Withdrawal of appeal. — An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (4a) REMEDIES AGAINST AN EXECUTORY JUDGMENT: 1. 2.

Petition for Relief (Rule 38) Annulment of Judgment (Rule 47)

Petition for Relief RULE 38: Relief from Judgments, Orders, or Other Proceedings

Two Forms of Petition for Relief: 1.

Petition for relief from judgment (Sec. 1); and Section 1. Petition for relief from judgment, order, or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a)

2.

Petition for relief from denial of appeal (Sec. 2) Section 2. Petition for relief from denial of appeal. — When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

such court and in the same case praying that the appeal be given due course. (1a)

Grounds: FAME: Fraud, Accident, Mistake or Excusable Negligence, the same grounds as motion for new trial. Limitation: if a party already had an opportunity to file a motion for new trial and the same is not filed due to his fault or negligence, that party likewise loses the right to file a petition for relief.

Where to file: with the court that rendered the judgment. Thus, if the judgment assailed is that of the MTC, it is to be filed with the MTC. This is different from action for revival of judgments, the jurisdiction of which is with the RTC since it is incapable of pecuniary estimation. “Petition”: is a misnomer because it connotes a separate action. In case of petition for relief, it is a mere continuation of the case and is even docketed as the same case. Section 7. Procedure where the denial of an appeal is set aside. — Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. (7a)

These are not alternative remedies, such that if a motion for new trial is not granted and the party failed to appeal the order, he cannot likewise file for a petition for relief since they have the same grounds. (see Mesina vs. Meer)

Prayer: both petitions for relief have the same grounds the difference lies on

If the Petition is Granted:

the prayer: x Petition for relief from judgment – that the judgment, order or proceeding be set aside; x Petition for relief from denial of appeal – that the appeal be given due course.

x x

Petition for relief from judgment – in effect, the court grants a new trial; Petition for relief from denial of appeal – the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made.

Injunction: Note that when a petition for relief is filed, the judgment is “ANY COURT” does not cover Court of Appeals; no Petition for Relief may be filed therein: While the law uses the phrase "any court," it refers only to Municipal/Metropolitan and Regional Trial Courts. The procedure in the Court of Appeals and this Court are governed by separate provisions of the Rules of Court and may, from time to time, be supplemented by additional rules promulgated by this Court through resolutions or circulars. As it stands, neither the Rules of Court nor the Revised Internal Rules of the Court of Appeals allows the remedy of petition for relief in the Court of Appeals. (Sps

De la Cruz vs. Andres) Section 3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken, and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. (3)

Time for filing; When: 1. 2.

Within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside; and Not more than 6 months after such judgment or final order was entered, or such proceeding was taken.

Notice: must be other than the regular notice coming from court, i.e.,

already executory. As such, the filing of a petition for relief, does not, per se, stop the execution of the judgment. Accordingly, the judgment may still be executed being final and executory. This is why Sec. 5 allows an application for injunction together with the petition. Section 5. Preliminary injunction pending proceedings. — The court in which the petition is filed may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition, but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon, the property, of the petitioner. (5a)

What if Petition is Granted, no injunction was filed, and the judgment was already executed: Restitution or Damages. Illustration: In a case for collection of sum of money, judgment was rendered in favor of A. B failed to file a motion for new trial and reconsideration and failed to appeal, without his fault and the judgment became executory. B filed for a petition for relief from judgment and injunction, but the injunction was denied. The judgment was executed. What is the remedy now of B if the petition is granted? B can file for claim for damages or restitution.

receiving a copy of the judgment. In the case of a petition for relief, petitioner came to know of the judgment other than the regular manner. This is because a party would normally file an appeal from receipt of copy of the judgment.

What if petition is DENIED; Remedy: is to file a motion for

Both periods must be complied with: Illustration: X was a judgment

reconsideration, if denied, a special civil action for certiorari. Note that a denial of a petition for relief is not appealable under Rule 41, Sec. 1(b).

obligor in a decision which was entered on January 10. 1. X came to know of the decision only on July 5 - He has 5 days to file his petition for relief since the 6 month period from entry of judgment expires on July 10. 2. X came to know of the decision on January 20 - He has until March 21 or 22 (if leap year) to file, in order to comply with the 60 day period. 3. X came to know of the decision only on August 5 – He cannot anymore file a petition for relief since this is already beyond the 6 month period.

Counsel’s notice: is notice to the client. As such, if from the time the counsel had notice, the 60 day period expired, the party cannot anymore file for a petition for relief. (Mercury Drug vs. CA) Knowledge of the party: The 60-day period is reckoned from the time the party acquired knowledge of the order, judgment or proceedings and not from the date he actually read the same. (Escueta vs. Lim)



The denial of a petition for relief from judgment is subject only to a special civil action for certiorari under Rule 65 not by a petition for review on certiorari under Rule 45. (see De La Cruz vs. Andres) Section 4. Order to file an answer. — If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. (4a) Section 6. Proceedings after answer is filed. — After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceeding complained of upon such terms as may be just. Thereafter the case shall

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (6a)

Annulment of Judgments

Grounds: 1.

2.

Extrinsic Fraud – if this ground was already availed of, or could have been availed of, in a motion for new trial or petition for relief, it is no longer available for annulment of judgments. Lack of Jurisdiction – which may either be lack of jurisdiction over the subject matter or over the person of the defendant. (see NHA vs.

Evangelista)

RULE 47: Annulment of Judgments of Final Orders and Resolutions 3.

Violation of due process (see Diona vs. Balanque)

Annulment of Judgments: a remedy granted only under exceptional circumstances where a party, without fault on his part, has failed to avail of the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies. Said rule explicitly provides that it is not available as a substitute for a remedy which was lost due to the party’s own neglect in promptly availing of the same. The underlying reason is traceable to the notion that annulling final judgments goes against the grain of finality of judgment. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final, the issue or cause involved therein should be laid to rest. Section 1. Coverage. — This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. (n)

Applicability: Rule 47 is applicable only for judgments rendered by the RTC in the exercise of its original exclusive jurisdiction. However, it may likewise apply to cases decided by the MTC as provided under Section 10, to wit: Section 10. Annulment of judgments or final orders of Municipal Trial Courts. — An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)

Filed with the CA: Section 1 provides that the annulment is done by the CA. Note that under Sec. 9(3) of BP Blg 129, as amended, this is the only case where the CA has exclusive original jurisdiction.

Not Applicable: 1. 2. 3. 4.

Before the Supreme Court – since a Petition for Annulment is an original action not cognizable by the Supreme Court under Rule 56. Criminal Proceedings – applicable only to civil cases; Judgment of a quasi-judicial agency; If a motion for reconsideration or new trial is available: A petition for annulment of judgment is a remedy in equity so exceptional in nature that it may be availed of only when other remedies are wanting, and only if the judgment, final order or final resolution sought to be annulled was rendered by a court lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional in character, is not allowed to be so easily and readily abused by parties aggrieved by the final judgments, orders or resolutions. The Court has thus instituted safeguards by limiting the grounds for the annulment to lack of jurisdiction and extrinsic fraud, and by prescribing in Section 1 of Rule 47 of the Rules of Court that the petitioner should show that the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. A petition for annulment that ignores or disregards any of the safeguards cannot prosper. (Pinausukan Seafood

House vs. Far East Bank & Trust Company) Section 2. Grounds for annulment. — The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. (n)



Violation of Due Process as a ground for annulment of judgment: While under Section 2, Rule 47 of the Rules of Court a Petition for Annulment of Judgment may be based only on the grounds of extrinsic fraud and lack of jurisdiction, jurisprudence recognizes lack of due process as additional ground to annul a judgment. There is such violation of due process when a party declared in default is ordered to pay interest at a rate higher than that prayed for by the winning party, because he was not informed of such possibility of greater relief. Limited to the determination of whether or not judgment can be annulled: the CA cannot go into the merits of the original case and decide on it.

Effect/Re-filing: 1.

2.

If the ground relied upon is lack of jurisdiction, the entire proceedings are set aside without prejudice to the original action being refiled in the proper court. If the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the CA may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. The remedy is by no means an appeal whereby the correctness of the assailed judgment or final order is in issue; hence, the CA is not called upon to address each error allegedly committed by the trial court.

(Pinausukan Seafood House vs. Far East Bank & Trust Company) Res Judicata not a valid defense against Petition for Annulment: the concept of res judicata is inconsistent with annulment of judgment. The petition for annulment precisely challenges the validity of the judgment. To adopt the argument that res judicata has set in would lead to a permanent preclusion of annulment of judgment. To say that res judicata will lie will prevent any annulment of judgment. Significantly, the reverse is true for the rational underlying annulment of judgment is incongruent with res judicata Section 3. Period for filing action. — If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. (n)

Period for Filing: 1. 2.

Extrinsic Fraud – 4 years from discovery; Lack of jurisdiction – before it is barred by estoppel or laches.

Contents of Petition: Section 4. Filing and contents of petition. — The action shall be commenced by filing a verified petition alleging therein with particularity the facts and the law relied upon for annulment, as well as those supporting the petitioner's good and substantial cause of action or defense, as the case may be. The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies corresponding to the number of respondents. A certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition intended for the court and indicated as such by the petitioner. The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of action or defense and a sworn certification that he has not theretofore commenced any other

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency if there is such other action or proceeding, he must state the status of the same, and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (n) Effect of Judgment: Section 7. Effect of judgment. — A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. (n)

disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. (1a) If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. (n)

EXECUTION cannot be obtained until and unless a. b. c. d.

the judgment has become final and executory; the right of appeal has been renounced or waived; the period for appeal has lapsed without an appeal having been filed; or having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin

Effect if granted: 1. 2.

Lack of jurisdiction – the questioned judgment or final order or resolution is set aside and rendered null and void. Extrinsic fraud – the court may, on motion, order the trial court to try the case as if a timely motion for new trial had been granted therein.

In the above cases, execution shall issue as a matter of right. (City of Iligan

vs. Principal Management Group Inc.) Writ of Execution – who issues: the court of origin, not the appellate court, may it be RTC, CA or SC.

Refiling of the original action in the proper court: the judgment is without prejudice to the refilling of the action.

Suspension of prescriptive period: 1. 2.

Lack of jurisdiction – the prescriptive period is suspended from the time of filing of the original action until finality of the judgment of annulment; Extrinsic Fraud – the same; EXCEPT, if the fraud is attributable to the plaintiff in the original action. Section 8. Suspension prescriptive period. — The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic-fraud is attributable to the plaintiff in the original action. (n)

Other Provisions: Section 5. Action by the court. — Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons for such dismissal. Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the respondent. (n) Section 6. Procedure. — The procedure in ordinary civil cases shall be observed. Should trial be necessary, the reception of the evidence may be referred to a member of the court or a judge of a Regional Trial Court. (n) Section 9. Relief available. — The judgment of annulment may include the award of damages, attorney's fees and other relief. If the questioned judgment or final order or resolution had already been executed the court may issue such orders of restitution or other relief as justice and equity may warrant under the circumstances. (n) VIII.

RULE 39: EXECUTION

A.

KINDS OF EXECUTION

1.

Matter of Right; Ministerial

Section 1. Execution upon judgments or final orders. — Execution shall issue as a matter of right, or motion, upon a judgment or order that



Example: If a case is filed in the MTC which decided in favor of A against B: x If B does not appeal the judgment and the same becomes final and executory, A will file the motion for issuance of a writ of execution with the MTC. x If B appeals to the RTC, and the same affirms the judgment of the MTC, and the judgment (of the RTC) becomes final and executory, the motion is still filed with the MTC. x The motion may be filed even if the records are still with the appellate court; only the copy of the judgment of the appellate court and the entry of judgment is required. x The motion is a litigated motion which requires compliance with Secs. 46 of Rule 15.

Opposition: the requirements under Rule 15 must be complied with to allow the losing party to oppose on the ground that the judgment has not been executory as to the obligor since he received it in a different date than the party filing the motion.

Mandamus; Alternative Remedy: is the remedy if the trial court refuses to issue the writ of execution, when it is a matter of right. But, under the present rules, you can file a motion with the appellate court praying that an order be issued directing the court of origin to issue the writ of execution, no need to initiate a special civil action for mandamus. When Execution would be Unjust and Inequitable: Settled is the rule that a judgment that has acquired finality becomes immutable and unalterable and may no longer be modified in any respect except only to correct clerical errors or mistakes. True, this rule admits of certain exceptions. One of these exceptions is whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable. (Villaruel,

Jr. vs. Fernando) It may happen that new facts and circumstances may develop or occur after a judgment had been rendered and while an appeal therefrom is pending; or new matters had developed after the appeal has been dismissed and the appealed judgment had become final and executory, which the parties were not aware of and could not have been aware of prior to or during the trial or during the appeal, as they were not yet in existence at that time. The execution may be stayed, notwithstanding the affirmance of the appealed judgment by the Supreme Court. (Sps. Serrano vs. CA) The supervening facts and circumstances must either have a direct effect upon the matter already litigated and settled or create a substantial change in the rights or relations of the parties therein which would render the

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

execution of a final judgment unjust, impossible or inequitable or when it becomes imperative in the interest of justice. (Sps. Serrano vs. CA)

When the event happened before the finality; when the case raised as a supervening event is entirely separate and distinct: it is not

executory, shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support.

considered a supervening event that warrants the stay of the execution of the decision of the trial court. Furthermore, the resolution of the ombudsman did not and could not supersede the decision of the trial court since they are completely different, clearly separate and distinct. (Villaruel vs. Fernando)

The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. (4a)

2.

Discretionary

Section 2. Discretionary execution. — (a) Execution of a judgment or final order pending appeal. — On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction the motion for execution pending appeal may be filed in the appellate court.

Rationale: because of very nature of the following cases, i.e., immediately executory: (IRASO) 1. Injunction; 2. Receivership; 3. Accounting; 4. Support; 5. Other judgments declared to be immediately executory.

Requisites: for the execution of a judgment pending appeal: a) a motion must be filed by the prevailing party with notice to the adverse party; b) there must be good reasons for execution pending appeal; and c) the good reasons must be stated in a special order. (City of Iligan vs.

Principal Management Group Inc.) Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (b) Execution of several, separate or partial judgments. — A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (2a)

Good reasons consist of compelling circumstances that justify the immediate execution of a judgment, lest it become illusory; or the prevailing party be unable to enjoy it after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay.

(City of Iligan vs. Principal Management Group Inc.) Examples of good reasons based on jurisprudence:

Residual Jurisdiction: when an appeal has been taken, the motion for

1.

execution pending appeal may be filed with: 1. Court of Origin – when the records have not been transmitted yet; 2. Appellate Court – when the records were already transmitted. However, the motion’s prayer is only for the issuance of an order directing the court of origin to issue a writ of execution. The appellate court cannot issue the writ of execution itself.

If the appeal is merely dilatory. Normally, the trial court is not allowed to assess its own judgment and to hold that an appeal may not prosper, or that it would merely be dilatory. However, they may do so if there are circumstances that indisputably serve as cogent bases for arriving at such a conclusion. (City of Iligan vs. Principal

2.

Advanced age: as any delay in the final disposition of the case may deny the party of his right to enjoy fully the money he has with the defendant bank. (FEBTC vs. Toh) To discharge the functions of his office as a government official: a combination of two or more of the following good reasons would suffice: (a) public interest is involved or will of the electorate; (b) the shortness of the remaining portion of the term of the contested office; and (c) the length of time that the election contest has been pending. (Santos vs. COMELEC)

An order of dismissal without prejudice, after reconsideration (due to intention of parties to submit to compromise) is not revived by the failure of the parties to reach a settlement agreement. If it is so: 1. 2.

Management Group Inc.)

3.

The trial court would not have any jurisdiction to issue subsequent orders denying a motion to set the case for pre-trial; and To deny a notice of appeal on the ground that the orders assailed are interlocutory – which would mean that there is something more to be done with the case. (RCBC vs. Magwin Marketing Corporation)

No execution pending appeal: Supersedeas Bond; Stay of Discretionary Execution: to stay the execution pending appeal, the adverse party may file a supersedeas bond: Section 3. Stay of discretionary execution. — Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. (3a ) Different from Supersedeas Bond under Rule 70: under Rule 70 (forcible entry/unlawful detainer), the supersedeas bond is equivalent to the rentals in arrears. Under Sec. 3, Rule 39, the supersedeas bond is dependent on the discretion of the court which should answer for any damages that may be incurred by the moving party due to the stay of the execution.

1. 2.

When the appeal taken is meritorious; When there is no superior circumstance that outweigh the damages that may result from the issuance of the writ. E.g., when the wife, after legal separation, wants a writ of execution covering the house where the husband lived, when she did not intend to use the said house and resides permanently in the US with 2 properties, where the husband has none.

3.

Absence of good reasons - the posting of a bond, standing alone and absent the good reasons required under Section 2, Rule 39 of the Rules, is not enough to allow execution pending appeal. In this case, the reason propounded, i.e., the sickness of the husband, was not considered since the party to the case was the wife. (Stronghold Insurance Company, Inc.

4.

Eminent Domain proceedings – funds of government should be specifically appropriated by law. Execution cannot lie to create confusion as to the funds’ application. The court therefore cannot entertain execution pending appeal of expropriation cases.

B.

MODES OF EXECUTION

(Banez vs. Banez)

vs. Felix)

Judgments not stayed by appeal Section 4. Judgments not stayed by appeal. — Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately



Section 6. Execution by motion or by independent action. — A final and executory judgment or order may be executed on motion within five

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

(5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. (6a)

party to the action and not against one who did not have his day in court.

(Panotes vs. CTDC) C.

MANNER OF EXECUTION

Liability for Contempt: is with the sheriff, since the writ is addressed to 1.

By Motion – only within 5 years from date of entry.

him, not the party.

Except: when the delay is caused or occasioned by actions of the judgment obligor and/or is incurred for his benefit or advantage. (see

1.

RCBC vs. Serra) In the said case, pending appeal of the decision of the trial court granting specific performance ordering Serra to execute a deed of sale in favor of RCBC, the former donated the subject land to her mother, who thereafter sold it. RCBC first sought nullification of the donation and sale prior to executing the judgment but more than 5 years passed. The SC held that this constituted an exception since the delay is caused or occasioned by the actions of the judgment obligor. The Court has reiterated that the purpose of prescribing limitations for enforcing judgments is to prevent parties from sleeping on their rights. Far from sleeping on its own rights, RCBC pursued persistently its action against Serra in accordance with law. 2.

By Independent Action – after the lapse of 5 years, the judgment may be executed only after revival thereof through an action to revive the judgment. An action for revival of judgment is no more than a procedural means of securing the execution of a previous judgment which has become dormant after the passage of five years without it being executed upon motion of the prevailing party. It is not intended to re-open any issue affecting the merits of the judgment debtor’s case nor the propriety or correctness of the first judgment. (Panotes vs. CTDC)

Section 7. Execution in case of death of party. — In case of the death of a party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. (7a) Death of: a. Obligee – the writ may be enforced upon application of his executor, administrator or successor in interest; b. Obligor – when death occurred: x Before execution i. Recovery of real or personal property or enforcement of a lien thereon - it may be enforced against his executor or administrator or successor in interest under Sec. 1 of Rule 87. ii. If money claims – no writ of execution is necessary, because it will be enforced as a money claim against the estate under Sec. 5, Rule 86. x

Where to File Action to Revive Judgment: it depends on the amount of the claim or if it is capable of pecuniary estimation, and not necessarily with the same court since the action is separate and distinct from the judgment sought to be revived. Example: the RTC rendered judgment for P500,000 and a writ was secured for its execution. The obligee was able to collect P350,000. After the lapse of 5 years, the obligee can no longer use the same writ, as such he must file for an action to revive judgment. Since the remaining claim is only P150,000 the action for revival of judgment must be filed with the MTC. However still, if the judgment is not capable of pecuniary estimation, then the jurisdiction therefor will be with the RTC. (Brondial, 2016)

Judgment granting revival: is separate and distinct from the judgment revived and must therefor have its own entry. No limit: if after revival, 5 years has elapsed already, you can still file an action for revival of judgment, provided it is still not prescribed, which is usually for 10 years counted from the date of entry of the judgment sought to be revived, not the original judgment. Coverage: the action is limited to reviving the judgment. As such, there is no need to present evidence anew nor can the judgment be modified. Subsequent buyers in good faith of lot covered by a judgment to be an open space to be provided by developer-seller: An action to revive the judgment cannot enforce the original judgment against an ordinary buyer of a lot, in good faith and for value. The obligation of the developer to provide an open space does not transfer to such buyer. Furthermore, strangers to a case are not bound by the judgment rendered by a court. It will not divest the rights of a party who has not and never been a party to a litigation. Execution of a judgment can be issued only against a



When Party is Dead

2.

After execution is actually levied upon any of his property – the same may still be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands.

When Judgment is for Money

Section 9. Execution of judgments for money, how enforced. — (a) Immediate payment on demand. — The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him.

a.

(b) Satisfaction by levy. — If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed, of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.

b. c.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon.

d.

by leaving a copy of the writ of execution and entry of judgment together with a copy of the judgment to the person owing such debt or in possession of such credits; a report shall be filed within 5 days from such service; if the amount is not sufficient, the report shall state how much was garnished; any garnished amounts received in cash or certified check shall be delivered to the obligee within 10 working days from service.

Levy: is taking legal custody of real or personal properties if the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the obligee.

Choice of which property: is with the obligor. If he does not exercise said option, the officer shall first levy on the personal properties, if insufficient, then on the real properties.

How done; Personal Property: When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees.

a.

b. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment.

Sheriff takes actual custody of it if it is capable of manual delivery and places it in court premises and not use the same for personal matters, otherwise he may be liable for administrative charges, even if at the order of the judge, the judge may likewise be held liable. Otherwise, the personal property must be duly ascertained that it is in place and a copy of the writ to the one in charge of the property and such becomes in custodia legis.

How done; Real Property: by annotation in the office of the register of deeds (c) Garnishment of debts and credits. — The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due, otherwise, the choice shall be made by the judgment obligee. The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee. (8a, 15a)

If payment is made to the sheriff: payment to the sheriff is not a valid satisfaction of judgment. If payment is thus made to the sheriff, the rule provides that the sheriff should turn the money over to the clerk of court that issued the writ or deposit the same in a fiduciary account in the nearest government depository bank of the RTC of the locality within the same day.

Check Payment: is valid only if made payable to the order of the judgment obligee and acceptable to him. Otherwise, if made payable to the sheriff, or to cash, it is not a valid satisfaction of judgment. Garnishment: is taking legal custody of debts due to the obligor or credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. How done:



of the place where the property is located. By the annotation, the property becomes in custodia legis.

If property is UNREGISTERED: the sheriff shall secure a copy of the tax declaration in the name of the judgment obligor and have the same registered with the register of deeds. 3.

When Judgment is for Specific Act

Section 10. Execution of judgments for specific act. — (a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. (10a) (b) Sale of real or personal property. — If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (8[c]a) (c) Delivery or restitution of real property. — The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee, otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (13a) (d) Removal of improvements on property subject of execution. — When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. (14a) (e) Delivery of personal property. — In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. (8a)

Specific Performance: then the sheriff must undertake that the act shall be done.

Unlawful Detainer: the judgment will consist of the obligor vacating the premises. He must be given 3 or 5 days to do so. Remedy: If they failed to do so, the remedy of the sheriff is to seek assistance from peace officers to forcibly eject the judgment obligor, not for the obligee to file contempt charges. This is because the writ is addressed to the sheriff and not the obligor.

If obligor returns: the sheriff can now cite the obligor in contempt. Demolition: cannot be done immediately, a court order for demolition must

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempted by law. But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (12a) Exemptions under this rule are confined only to natural persons and not to juridical entities such as petitioner. Thus, the rule speaks of salaries, wages and earning from the ‘personal services’ rendered by the judgment obligor. The rule further requires that such earnings be intended for the support of the judgment debtor’s family

be first secured. 4.

When it is a Special Judgment

Section 11. Execution of special judgments. — When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. (9a)

Judgment to withdraw money: the sheriff must accompany the obligor and ask him to withdraw from the bank. This is considered a special judgment since no other person can perform the act other than the judgment obligor. If the judgment can be performed by another at the expense of the obligor, then Sec. 10 applies.

Contempt: generally, the judgment obligor cannot be held in contempt since the writ is directed towards the sheriff. However, under Sec. 11, the act can only be performed by the judgment obligor and said provision specifically punishes him for contempt. D.

PROPERTIES EXEMPT FROM EXECUTION

Section 13. Property exempt from execution. — Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (P100,000) (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (P300,000)



The exemption contemplated by the provision involved is personal, available only to a natural person, such as a dentist’s dental chair and electric fan (Belen v. de Leon, G.R. No. L-15612, 30 Nov. 1962). As pointed out by the Solicitor General, if properties used in business are exempt from execution, there can hardly be an instance when a judgment claim can be enforced against the business entity’. (D’

Armoured Security and Investigation Agency vs. Orpia, et al.) E.

THIRD PARTY CLAIM

Section 16. Proceedings where property claimed by third person. — If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and copy thereof, stating the grounds of such right or tittle, and a serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnity the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. (17a)

Different form a third party complaint: a third party claim happens on auction sale on execution, foreclosure, replevin or attachment. A third party complaint is covered under Rule 3, which contains a claim that a defending party may file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Third party claimant in Execution compared to replevin and attachment: in foreclosure, the third parry can only vindicate his claim in a SEPARATE ACTION, unlike in attachment and replevin where the third party claimant can vindicate his claim in the SAME or SEPARATE action through an intervention. (Sec. 14, Rule 57 and Sec. 7, Rule 60) F.

EXECUTION SALE

3 BASIC REQUIREMENTS: a. Notice; b. Posting; c. Publication Section 15. Notice of sale of property on execution. — Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days; (c) In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; (d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. (18a)

Notice to whom: the judgment obligor. Otherwise, the auction becomes irregular and may be invalidated. It must be given 3 days before the date of sale, except when the goods to be sold are perishable.

How long is posting necessary: a. b. c.

If perishable goods: posting may be required but only for a day or two; If personal properties, capable of manual delivery: not less than 5 days, otherwise, it may be more depending on the court. If real property – 20 days.

When done: the places stated in the rules are not mandatory but only suggestive. What is important is where as many people as possible can read it, e.g., municipal building, public market, post offices.

Publication: is generally not necessary. Only when the assessed value of the real property exceeds P50,000, publication must be done, once a week in 2 consecutive weeks in a newspaper of general circulation.

Auction Sale; Time: must be done between the hours of 9am to 2pm and may be adjourned from time to time depending on the agreements of the



parties or if the parties are not around, depending on the sheriff giving notice to the parties.

When judgment obligee may be required to pay: as a rule, if the obligee is the highest bidder, he is not required to pay. The exceptions are: a. When there is a third party claim which puts into issue the ownership of the property. b. When the judgment obligee bids higher than his claim. Section 17. Penalty for selling without notice, or removing or defacing notice. — An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages, both to be recovered by motion in the same action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.00) pesos to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action. (19a) Section 18. No sale if judgment and costs paid. — At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. (20a) Section 19. How property sold on execution; who may direct manner and order of sale. — All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. (21a) Section 20. Refusal of purchaser to pay. — If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. (22a) Section 21. Judgment obligee as purchaser. — When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. (23a) Section 22. Adjournment of sale. — By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned. (24a) Section 23. Conveyance to purchaser of personal property capable of manual delivery. — When the purchaser of any personal

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

property, capable of manual delivery, pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (25a) Section 24. Conveyance to purchaser of personal property not capable of manual delivery. — When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (26a) Section 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds. — Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price paid by him; (d) A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. (27 a) Section 26. Certificate of sale where property claimed by third person. — When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-party claim. (28a) G.

REDEMPTION

Personal property: redemption is only available if the property sold is real property. The same is not available if the property sold is personal property.

Registration of Certificate of Sale: is the reckoning point of the right to redeem. Such that if the certificate of sale is not registered with the registry of deeds, the period to redeem does not begin to run. 1.

to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid on the last redemption, with two per centum thereon in addition and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. (30a)

Redemption period: is 1 year from the date of registration of the certificate of sale. However, for subsequent redemptioners, redemption period is only 60 days after the last redemption.

Continuous Redemption: if the property is redeemed by a redemptioner, then other redemptioners have 60 days from the date of redemption, and so on and so forth. But, if the property is redeemed by the judgment obligor from a redemptioner, no other redemption may redeem from the obligor, as provided under Sec. 29:

The Right of Redemption vs. Equity of Redemption

Section 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made. — If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. (31a)

Right of Redemption is the privilege or right of the judgment obligor or redemptioner to redeem the property within a period of 1 year from the registration of the certificate of sale. Equity of Redemption, on the other hand, is available only in judicial foreclosure which gives the mortgagor 90 to 120 days from the time of sale to redeem the property. However, equity of redemption is not cut until there is order of confirmation of sale. 2.

Who May Redeem

Section 27. Who may redeem real property so sold. — Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor; or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. (29a) Section 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. — The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser the amount of his purchase, with the per centum per month interest thereon in addition, up



Rationale for allowing: it extinguishes as many obligations as there are redemptions.

Amount to be paid by redemptioner: a. b. c. d.

Purchase price; Any assessments or taxes paid by the purchaser after the purchase; Interest on the first two at the rate of 1% per month, upto the time of redemption; If the purchaser be also a creditor with a prior lien, the amount of such lien with interest.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Subsequent redemptioner other than the judgment obligor: has 60 days to redeem, from the last redemption by paying the amount paid from the last redemption plus 2% thereof.

shall have the same force and effect as an original judgment would have as of the date of the revival and no more. (36a)

Purchaser not able to obtain the property, or is evicted therefrom: Notice: it is required that a notice be given to the officer who made the sale and a copy thereof given to the register of deeds to be entitled to the payment of assessments, taxes or liens, in case of a subsequent redemption from him. Section 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. — If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party adversely to the judgment obligor. (35a)

Possession; prevention of wastage: of the property sold remains with the judgment obligor for the period of redemption. However, the purchaser may apply for injunction to prevent the wastage of the property bought as provided under Sec. 31: 31. Manner of using premises pending redemption; waste restrained. — Until the expiration of the time

Section

allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. (33a) Section 32. Rents, earnings and income of property pending redemption. — The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. (34a)

Fruits and rent: earned from the property, during the period of redemption, shall belong to the judgment OBLIGOR until the expiration of the period of redemption. Section 34. Recovery of price if sale not effective; revival of judgment. — If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor, or he may, on motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived



the remedy is provided for under Sec. 34: by motion: 1. Recover the amount paid with interest, or so much thereof as has not been delivered to the judgment obligor, or 2. He may have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. Section 30. Proof required of redemptioner. — A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered, or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien. (32a) H.

OTHER REMEDIES TO FULLY SATISFY JUDGMENT

1.

Examination of Judgment Obligor

Section 36. Examination of judgment obligor when judgment unsatisfied. — When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. (38a) 2.

Examination of the Obligor of Judgment Obligor

Section 37. Examination of obligor of judgment obligor. — When the return of a writ of execution against the property of a judgment obligor shows that the judgment remain unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer, or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. (39a) 3.

Appointment of Receiver

Section 41. Appointment of receiver. — The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. (43a) 4.

Sale of Ascertainable Interest

Section 42. Sale of ascertainable interest of judgment obligor in real estate. — If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

mortgagee or other- wise, and his interest therein can be ascertained without controversy the receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real state upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed. (34a) 5.

ABSOLUTE identity of parties is not required: absolute identity of parties is not a condition sine qua non for the application of res judicata. It is sufficient that there is a shared identity of interest. The rule is that, even if new parties are found in the second action, res judicata still applies if the party against whom the judgment is offered in evidence was a party in the first action; otherwise, a case can always be renewed by the mere expedience of joining new parties in the new suit. (Perez vs. CA)

Sale of Property or Interest in contested property

Identity of Causes of Action: The ultimate test to ascertain identity of Section 43. Proceedings when indebtedness denied or another person claims the property. — If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims an interest in the property adverse to him or denied the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. (45a) I.

JUDGMENT: PRINCIPAL VS. SURETY

Section 46. When principal bound by judgment against surety. — When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety's request to join in the defense. (48a) J.

EFFECT OF JUDGMENT

Section 47. Effect of judgments or final orders. — The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration or the condition, status or relationship of the person, however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive between the parties and their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (49a) 1. 2. 3.

In Rem – conclusive upon the title of the thing or the subject matter. E.g., adoption. In Personam – conclusive upon the parties and their successors in interest Over Judicata

Res Judicata: There are four (4) essential requisites which must concur for the application of this doctrine: (a) finality of the former judgment – there must be a final judgment; (b) by a competent court – i.e., the court which rendered it had jurisdiction over the subject matter and the parties; (c) it must be a judgment on the merits; and (d) there must be, between the first and second actions, identity of parties, subject matter and causes of action



causes of action is whether or not the same evidence fully supports and establishes both the first and second cases. (Perez vs. CA)

Conclusiveness of Judgment: Section 47(c) of Rule 39 enumerates the concept of conclusiveness of judgment. This is the second branch, otherwise known as collateral estoppel or estoppel by verdict. This applies where, between the first case wherein judgment is rendered and the second case wherein such judgment is involved, there is no identity of causes of action. It has been held that in order that a judgment in one action can be conclusive as to a particular matter in another action between the same parties or their privies, it is essential that the issues be identical. If a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit; but the adjudication of an issue in the first case is not conclusive of an entirely different and distinct issue arising in the second. In order that this rule may be applied, it must clearly and positively appear, either from the record itself or by the aid of competent extrinsic evidence that the precise point or question in issue in the second suit was involved and decided in the first. And in determining whether a given question was an issue in the prior action, it is proper to look behind the judgment to ascertain whether the evidence necessary to sustain a judgment in the second action would have authorized a judgment for the same party in the first action. (Perez vs. CA, see also City of Cebu vs. Dedamo) K.

EFFECT OF FOREIGN JUDGMENT

Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order, is conclusive upon the title to the thing, and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (50a)

Grounds to repel a foreign judgment or final order: 1. 2. 3. 4. 5.

Want of Jurisdiction; Want of Notice to the party; Collusion; Fraud; Clear Mistake of Law or Fact.

Arbitral Award: The above grounds are likewise the grounds to question/contest an arbitral award with the addition that the arbitral award is contrary to public policy. FOREIGN JUDGMENT AS BASIS FOR CORRECTION OF ENTRY IN THE CIVIL REGISTRY: Section 48(b), Rule 39 of the Rules of Court states that the foreign judgment is already "presumptive evidence of a right between the parties." Upon recognition of the foreign judgment, this right becomes conclusive and the judgment serves as the basis for the correction or cancellation of entry in the civil registry. The recognition of the foreign judgment nullifying a bigamous marriage is a subsequent event that establishes a new status, right and fact that needs to be reflected in the civil registry. Otherwise, there will be an inconsistency between the

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

recognition of the effectivity of the foreign judgment and the public records in the Philippines. (Fujiki vs. Marinay) OTHER PROVISIONS: Section 5. Effect of reversal of executed judgment. — Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. (5a) Section 8. Issuance, form and contents of a writ of execution. — The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: (a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property; (c) If it be for the sale of real or personal property to sell such property describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; (d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and (e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant.(8a) Section 12. Effect of levy on execution as to third person. — The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. (16a) Section 14. Return of writ of execution. — The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. (11a)

Full Satisfaction of the Judgment: is when: 1.

2.

The WRIT itself is returned to the court – note that the writ has no term, Sec. 14 above just requires the sheriff to make a return and report to the court the progress of the execution. But once the judgment is fully satisfied, the writ itself will be returned to the court; There is written acknowledgment of the judgment obligee.

Duty of Sheriff to make a return within 30 days from receipt of the writ: Within 30 days from receipt thereof and every 30 days thereafter until the judgment is fully satisfied, a sheriff is required by the Rules of Court to render a report on the action taken on a writ of execution. The failure to make a return of a writ within the required period is nonfeasance



When a writ of execution is placed in the hands of a sheriff, it is his duty, in the absence of contrary instructions, to have it implemented forthwith. The sheriff is primarily responsible for the speedy and efficient service of all court processes and writs originating from the court and its branches, including such as may be properly delegated to him by other courts. (Fajardo vs. Quitalig)

“Heavy Workload” is not an excuse for unreasonable delay for implementation of the writ: the final stage in the litigation process -- the execution of judgment -- must be carried out promptly. They should exert every effort and indeed consider it their bounden duty to do so, in order to ensure the speedy and efficient administration of justice. A decision that is left unexecuted or delayed indefinitely because of the sheriff’s inefficiency or negligence remains an empty victory on the part of the prevailing party. For this reason, any inordinate delay in the execution of judgment is truly deplorable and cannot be countenanced by the Court. The excuse proffered by respondent sheriff -- heavy workload -- cannot absolve him from administrative sanctions. As an officer of the court, he should at all times show a high degree of professionalism in the performance of his duties. (Sps. Morta vs. Bagagnan) Section 35. Right to contribution or reimbursement. — When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. (37a) 38. Enforcement of attendance and conduct of examination. — A party or other person may be compelled, by an order

Section

or subpoena, to attend before the court or commissioner to testify as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers before a court commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. (40a) Section 39. Obligor may pay execution against obligee. — After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment, in the manner prescribed in section 9 of this Rule, and the sheriff's receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution. (41a) Section 40. Order for application of property and income to satisfaction of judgment. — The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property. If, upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal services are more than necessary for the support of his family, the court may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt. (42a) Section 44. Entry of satisfaction of judgment by clerk of court . — Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel, on the face of the record of the judgment. (46a)

satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. (47a)

Section 45. Entry of satisfaction with or without admission. — Whenever a judgment is satisfied in fact, or otherwise than upon an execution on demand of the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse an admission of the



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

CRIMINAL PROCEDURE I.

JURISDICTION

A.

SUPREME COURT 1. 2.

the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto.

No original jurisdiction over criminal cases; Appellate jurisdiction: a. By petition for review; b. By notice of appeal.

It is true that by reason of public officer’s death, there is no longer any public officer with whom respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished by such death is the public officer’s personal criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between him and private respondent.

SECTION 5. The Supreme Court shall have the following powers: xxx (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: xxx (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. xxx

The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as in the present case where the public officer has already died, the private person may be indicted alone. (People vs.

When the RTC imposed the death penalty, the Court of Appeals shall automatically review the judgment under Rule 122, Sec. 3(d) and Sec. 10.

Henry Go)

Whenever the Court of Appeals finds that the penalty of death should be imposed, the court shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review. (Sec. 13[a] of Rule 124)

Public Office: compensation is not an essential element of public

If the CA imposes reclusion perpetua or life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty and the same may be appealed to the SC by notice of appeal. (Sec. 13[c] of Rule 124)

Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer. (Serrana vs. Sandiganbayan)

B. C.

COURT OF APPEALS SANDIGANBAYAN

office. At most, it is merely incidental to the public office.

3.

Original Jurisdiction:

How to determine when Sandiganbayan has jurisdiction: 1.

What offense was committed? a. b. c. d. e. f. g.

2.

How the offense was committed? In relation to public office. It is, however, not necessary that the office be an ingredient of the offense, it is sufficient that the public office has facilitated the commission of the crime. (Serrana vs. Sandiganbayan)

RA 3019 (Anti-Graft and Corruption Practices Act) RA 1379 (The Law on Ill-Gotten Wealth) Chapter II Title VII Book 2 of the Revised Penal Code (Bribery) E.O. Nos. 1, 2, 14, 14-A (PCGG cases) Estafa (Serana case) Falsification (Garcia case) Other offenses or felonies whether simple or complexed with other crimes (committed by public officers in relation to their public office, where such officer occupies a position with salary grade 27 or higher)

Who committed the offense? a.

b.

Appellate Jurisdiction: All cases decided by the RTC in the exercise of its original or appellate jurisdiction over cases of public officers with SG less than 27 charged with offenses/ crime aforementioned.

Forfeiture Cases: Executive Order No. (EO) 14, Series of 1986, albeit defining only the jurisdiction over cases involving ill-gotten wealth of former President Marcos, his immediate family and business associates, authorizes under its Sec. 3 the filing of forfeiture suits under RA 1379 which will proceed independently of any criminal proceedings. (Clarita Garcia vs. Sandiganbayan) Primary Jurisdiction of the Ombudsman: The Ombudsman has primary jurisdiction over all cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

Motion for Reconsideration finding probable cause will not be a bar to the arraignment: If the filing of a motion for reconsideration of the

Public officers in the executive, legislative, and judicial branches of the government with SG 27 according to RA 6758 (The Compensation and Position Classification Act of 1989) as well as those enumerated under Sec. 4(a)(1) of PD 1606, as amended, including presidents, directors, trustees or managers of GOCCs or State Universities (par. [g] thereof).

resolution finding probable cause cannot bar the filing of the corresponding information, then neither can it bar the arraignment of the accused, which in the normal course of criminal procedure logically follows the filing of the information. (Ramiscal, Jr. vs. Sandiganbayan)

Even if the public officer is only an accomplice.

D.

Private individuals committing the offense or crime with public officers.

Original Jurisdiction: 1. All criminal cases which are NOT within the exclusive original jurisdiction of any court. The offense must carry a penalty of more than 6 years (prision mayor). 2. Cases involving public officers in relation to their public office with a salary grade LOWER than 27. 3. Cases with a penalty of a fine of P10,000 or more. 4. Tax criminal cases where the amount involves less than P1M or where no amount is indicated (if P1M or more, the CTA will have original

Private Persons in conspiracy with public officers with a salary grade of 27 are also under the jurisdiction of the Sandiganbayan, even after the death of the said public officer: private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of R.A. 3019, in consonance with



REGIONAL TRIAL COURTS

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

5.

jurisdiction). However, if the amount is P400,000 within Metro Manila; or P300,000 outside Metro Manila, or less, the jurisdiction is with the MTC. Libel cases even those committed by public officials: although RA 7691 was enacted to decongest the clogged dockets of the Regional Trail Courts by expanding the jurisdiction of first level courts, said law is of a general character. Even if it is a later enactment, it does not alter the provision of Article 360 of the RPC, a law of a special nature.

SEC. 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.

Laws vesting jurisdiction exclusively with a particular court, are special in character, and should prevail over the Judiciary Act defining the jurisdiction of other courts (such as the Court of First Instance) which is a general law. A later enactment like RA 7691 does not automatically override an existing law, because it is a well-settled principle of construction that, in case of conflict between a general law and a special law, the latter must prevail regardless of the dates of their enactment. Jurisdiction conferred by a special law on the RTC must therefore prevail over that granted by a general law on the MTC. (People vs. Benipayo)

There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases. PRINCIPLES ON JURISDICTION IN CRIMINAL CASES: 1. 2. 3.

Jurisdiction over the subject matter is conferred by law Jurisdiction over the territory is conferred by law since venue is jurisdictional Venue is jurisdictional in criminal cases. That is why jurisdiction over the territory does not apply in civil cases.

Appellate Jurisdiction: All criminal cases decided by the MTC. E.

As such, the Information must be filed in the territory where the crime was committed.

FAMILY COURTS

Original Exclusive Jurisdiction 1. Where a party is a minor at the time of the commission of the crime 2. Violence against women and children 3. Child abuse cases 4. Drug cases F.

METROPOLITAN/MUNICIPAL TRIAL COURT

1. 2. 3. 4. 5.

All violations of city/ municipal ordinances All offenses punishable with imprisonment of not more than 6 years Violations of traffic rules and regulations Violations of B.P 22 Damage to property with fine of not more than P10,000

G.

COURTS OF MUSLIM MINDANAO (RA 6734, as amended by RA 9054) MILITARY COURTS

But if the offense is transitory or continuing, any place where any of the ingredients of the crime may be found. However, even if the place of instituting criminal offense, or the venue, cannot be the subject of a compromise or stipulation, the venue of the trial can be moved subject to the approval of the Supreme Court, for the protection of the witnesses, the accused, offended party or for the orderly administration of justice, e.g., the Maguindanao Massacre case. If committed outside the Philippine territory but may be prosecuted herein, as those provided under Art. 2 of the Revised Penal Code, or those committed in the Philippine Embassy, or acts of terrorism. 4.

H. x x x x

Jurisdiction only over service-oriented cases. Neither are they courts nor quasi-judicial bodies They are only considered as quasi-courts BUT for purposes of the prohibition on the practice of law on public officers, military courts are considered as courts.

I.

Jurisdiction over the person of the accused is acquired through arrest or voluntary surrender In civil cases, there are 5 parties. The court acquires jurisdiction over the person of the intervenor upon approval of the motion to intervene.

5.

Jurisdiction of the court is determined by the law enforced at the time of the commission of the offense

6.

Jurisdiction over the res: In civil cases, the court does not have to acquire jurisdiction over the res as long as it has jurisdiction over the person of the defendant. But if it cannot acquire jurisdiction over the person of the defendant, and acquires jurisdiction over the res, the case can continue.

OFFICE OF THE OMBUDSMAN

PROSECUTOR VS. OMBUDSMAN PROSECUTOR Conducts preliminary investigation Prosecutes the case under Rule 110, Sec. 5, under his direction and control, but authority may be had from the Chief Prosecution Office for a private prosecutor to prosecute in the absence of a public prosecutor. Conducts inquest proceedings under Rule 112, Sec. 6

J.

OMBUDSMAN Likewise conducts preliminary investigation Prosecutes the case through the office of the special prosecutor under the office of the Ombudsman

7.

8.

Conducts fact-finding investigation and if they find irregularities, files the complaint.

CYBERCRIME PREVENTION ACT

Cybercrime Prevention Act of 2012 (RA 10175)



Jurisdiction over the res is not applicable in criminal cases. Rather, it is jurisdiction over the offense. This is determined by the penalty imposable not penalty imposed, except in the Sandiganbayan, where the determinants is the office, salary grade, etc.

9.

Jurisdiction over the issue: In civil cases, jurisdiction over the issue is determined by the allegations in the pleadings. In criminal cases, it is determined by the Information. Principle of Adherence: is applicable also to criminal cases, such that, once jurisdiction is acquired by the criminal court, it has to continue until final judgment. Filing Fees: no filing fees are assessed for ACTUAL damages. But for other types of damages, if they are alleged and the amount thereof is indicated, the filing fees are assessed thereon, otherwise, the filing fees shall constitute a lien on the award of damages. EXCEPT: for BP Blg 22, where the amount in the check shall be considered actual damages and filing fees need to be paid based thereon.

. II. RULE 110

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

A.

INSTITUTION OF CRIMINAL ACTIONS

Section 1. Institution of criminal actions. — Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.

grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding paragraph. No criminal action for defamation which consists in the imputation of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party. (5a) The prosecution for violation of special laws shall be governed by the provisions thereof. (n)

Offenses which may not be instituted without a complaint: Concubinage, Adultery, Seduction, Acts of Lasciviousness and Abduction. Rape, as a crime against persons, may now be instituted de officio.

Defamation concerning the above crimes must likewise be instituted with a The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws. (1a)

How is a criminal action instituted? 1.

2.

Complaint filed with the fiscal: in Metro Manila and other chartered cities. Information filed with the court by the fiscal after a preliminary investigation. Complaint directly filed with the MTC: for cases punishable by 6 years or less. However, if the offense is punishable by imprisonment of at least 4 years, 2 months and 1 day (prision correccional maximum) or more, there may still be a preliminary investigation under RA No. 7691. Otherwise, the MTC may take cognizance of the case without a preliminary investigation.

Effect of institution: interrupt the running of the period of prescription of

complaint.

Who may file the complaint aside from the offended party: parents, grandparents or guardians ad litem, in that order. The presence of the parents, will not give right to the grandparents to file a complaint.

Who files the Information: the offended party, which is the State. The private complainant is not a party to the case, but normally a witness. As such, the court may exclude the public, including the private complainant. Unlike in civil cases where the plaintiff and defendants are both the parties to the case.

Complaint defined. — A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. (Section 3)

the offense charged unless otherwise provided in special laws.

Information defined. — An information is an accusation in writing charging Once a complaint is filed with the justice of the peace for preliminary investigation, the prescription of the offense is halted. (Panaguiton vs. DOJ)

a person with an offense, subscribed by the prosecutor and filed with the court. (Section 4)

Special laws: the period of prescription is interrupted upon filing with the

The main difference in a complaint and in an information is, who is the subscribing party, i.e., the private complainant in a complaint (offended party), and the prosecutor in an information.

fiscal’s office, similar to a violation of the RPC.

Ordinance: from filing of the information in COURT. B. Section 5. Who must prosecute criminal actions. — All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.

Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a)

What must be included in the Complaint or Information: 1.



Name of accused : Section 7. Name of the accused. — The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown.

The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents,

SUFFICIENCY OF COMPLAINT OR INFORMATION

If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. 2.

Name of offended party Section 12. Name of the offended party. — The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. (a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose properly the offense was committed is thereafter disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information and the record.

Joinder of causes of action not allowed: Section 13. Duplicity of the offense. — A complaint or information must charge but one offense, except when the law prescribes a single punishment for various offenses. There can be no joinder of causes of action in criminal proceedings unlike in civil cases. Even in BP 22, each check is equivalent to one information. Exception: in cases of complex crimes where one act or omission violates 2 laws. C.

(c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law. 3.

Name of offense

Section 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

Section 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. (n)

How is the offense designated? Under the Rules, in layman’s language so that it is understandable by an ordinary individual. The essential ingredients of the offense must always be stated, absence of at least one, may be reason for dismissal on the ground that the facts charged do not constitute an offense (Rule 117). 4.

5.

AMENDMENT vs. SUBSTITUTION

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (14a)

Cause of accusation

Prior to making a plea: amendment may be had even without leave of court, on matters both of substance and form, BEFORE the accused enters his plea.

Section 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

However, if the amendment downgrades the nature of the offense charged or excludes any accused from the complaint or information, the amendment can be made before plea only upon MOTION of the prosecutor and NOTICE to the offended party WITH leave of court.

Place of commission

Plea already made: only matters of form may be amended for as long as it would not prejudice the rights of the accused.

Section 10. Place of commission of the offense. — The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of the essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense or is necessary for its identification. There are crimes where the place is an essential ingredient. Example: Theft in the national library and highway robbery. 6.

Date of commission Section 11. Date of commission of the offense. — It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.

Regarding the place and time, they do not have to be exact. If it is committed in Manila, you do not have to specify that it was committed in Tondo or Malate. The information usually just says “within the jurisdiction of this Honorable Court.” Example of a crime where time is an element: under the aggravating circumstances, nighttime may increase the penalty.



Amendment without motion: is allowed by order of the court under Rule 117, Sec. 3, to wit: Section 4. Amendment of the complaint or information. — If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. (4a) If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.

Change of modality of the execution of the offense is not substitution but merely an amendment. Hence, new no preliminary investigation is required: Only the mode of commission was modified. While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan, provides that there are two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it does not mean that each act or mode constitutes a distinct offense. An accused may be charged under either mode or under both should both modes concur.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

While it is a rule that in substitution of information another preliminary investigation is entailed and that the accused has to plead anew to the new information is not applicable to the present case because, as already stated, there is no substitution of information there being no change in the nature of the offense charged. (Saludaga vs. Sandiganbayan) D.

PLACE WHERE ACTION IS TO BE INSTITUTED

Section 15. Place where action is to be instituted. — (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. (15a) E.

INTERVENTION OF THE OFFENDED PARTY

Section 16. Intervention of the offended party in criminal action. — Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. (16a)

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. (cir. 57-97)

Civil Aspect: arising from the offense charged shall be deemed instituted with 1. 2. 3.

Reservation; When Made: prior to the presentation of the prosecution of evidence.

Filing Fees: except as otherwise provided in these Rules, no filing fees shall be required for actual damages. For other damages: moral, nominal, temperate, or exemplary damages: 1. 2.

III. RULE 111: PROSECUTION OF CIVIL ACTION A.

CIVIL LIABILITY ARISING FROM THE OFFENSE IS DEEMED INSTITUTED

Section 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court.



If amount thereof is specified in the complaint or information, the filing fees shall be paid by the offended party in the court; If not specified, the filing fees thereof shall constitute a first lien on the judgment awarding such damages.

Counterclaim, cross-claim or third-party complaint: the accused in the criminal case cannot file any counterclaim, cross-claim or third-party complaint, but any cause of action which could have been the subject thereof may be litigated in a separate civil action Violation of BP Blg. 22: Unlike other cases where the civil aspect may be reserved, in the criminal action for violation of BP Blg. 22, the civil aspect shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Note that what is prohibited is only reservation, waiver and prior institution of the civil action is not.

If civil action already filed: it may either be suspended or consolidated with the criminal action upon application with the court trying the criminal case. Criminal tax cases and Sadiganbayan: civil aspect is likewise included and simultaneously instituted and there is no right to reserve the civil aspect. Two kinds of acquittal and their effect on the civil liability arising from delict: 1.

Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a)

the criminal action unless: the offended party waives the civil action; reserves the right to institute it separately; or institutes the civil action prior to the criminal action.

2.

No more civil liability - Acquittal on the ground that the ACCUSED IS NOT THE AUTHOR OF THE ACT OR OMISSION COMPLAINED OF. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission. There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court. Not exempt from civil liability - an acquittal based on REASONABLE DOUBT on the guilt of the accused. In this case,

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only. This is the situation contemplated in Article 29 of the Civil Code, where the civil action for damages is "for the same act or omission. (Castillo vs. Salvador)

Civil liability is likewise extinguished if the acquittal was NOT due to reasonable doubt: We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability. But we cannot now find and declare him civilly liable because the circumstances that have been established here do not present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no firm and competent showing how the injury to Gerard had been caused.

(Solidum vs. People)

Criminal action filed first: no separate civil action can be commenced. Civil action filed first: it shall be suspended at whatever stage it may be found before judgment on the merits until final judgment is rendered on the criminal action.

Consolidation: before judgment on the merits, the offended party may, by motion, have the civil action (already instituted) consolidated with the criminal action. In the court trying the latter. Evidence in civil case: already adduced, once consolidated, shall be deemed reproduced in the criminal action, without prejudice to the rights of the prosecution to cross-examine the witnesses presented by the offended party or the parties’ right to present additional evidence.

Civil Liability deemed instituted includes only those arising from the offense charged: In criminal prosecutions, the civil action for the recovery

The cases shall be tried and decided jointly.

of civil liability that is deemed instituted with the criminal action refers only to that arising from the offense charged. (Solidum vs. People)

Applicability of Prohibition and Suspension is only to civil actions arising from delict: This rule applies only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil

COVERAGE: only civil actions arising from delict: A single act or

actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action.

omission that causes damage to an offended party may give rise to two separate civil liabilities on the part of the offender: (1) civil liability ex delicto, that is, civil liability arising from the criminal offense under Article 100 of the Revised Penal Code, and (2) independent civil liability, that is, civil liability that may be pursued independently of the criminal proceedings. (Lim vs. Kou Co Ping)

Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto. (Casupanan vs. Laroya)

Prescription of the civil action: The period of running of the prescriptive Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action "deemed instituted" in the criminal action. (Casupanan vs. Laroya)

period of the civil action which cannot be instituted shall be tolled;

Extinction: 1. 2.

The extinction of the penal action does not carry with it the extinction of the civil action. However, if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability based on delict may arise did not exist.

Bar Rule under the Rules on the Writ of Amparo and Writ of Habeas Data: Effect of Filing of a Criminal Action. – When a criminal action has

B.

SUSPENSION OF CIVIL ACTION

Section 2. When separate civil action is suspended. — After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n) The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (2a)



been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Meanwhile, the writ of habeas data provides a judicial remedy to protect a person’s right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends. As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification. C.

INDEPENDENT CIVIL ACTION

Section 3. When civil action may proceeded independently. — In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (3a)

General rule: Once you file a criminal case, the civil aspect is deemed instituted therein.

Exception: Violations of Articles 32, 33, 34 and 2176 of the Civil Code – These are 2 cases that can run parallel lines. You can file both because these particular provisions violate both the Civil Code and the RPC. Example: A is the driver of B. There was a collision where someone died, due to the fault of A (reckless imprudence resulting to homicide). A case may be filed against A under the RPC and against B under the Civil Code. They can move on parallel lines. You can file both cases.

Civil Code Provisions: Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (14) The right to be a free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts.



In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a)

Limitation on double recovery: The criminal case that moved independent of civil case can no longer award civil damages, as provided under Art. 2177: Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

Independent Civil Actions not arising from delict: The independent civil liability may be based on "an obligation not arising from the act or omission complained of as a felony," as provided in Article 31 of the Civil Code (such as for breach of contract or for tort). It may also be based on an act or omission that may constitute felony but, nevertheless, treated independently from the criminal action by specific provision of Article 33 of the Civil Code ("in cases of defamation, fraud and physical injuries"). The civil liability arising from the offense or ex delicto is based on the acts or omissions that constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action. For this reason, the civil liability ex delicto is impliedly instituted with the criminal offense. If the action for the civil liability ex delicto is instituted prior to or subsequent to the filing of the criminal action, its proceedings are suspended until the final outcome of the criminal action. The civil liability based on delict is extinguished when the court hearing the criminal action declares that "the act or omission from which the civil liability may arise did not exist." (Lim vs. Kou

Co Ping) Independent Civil Liability may be pursued separately and may proceed independently from the criminal action: Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively, without offending the rules on forum shopping, litis pendentia, or res judicata. This is because one of the elements of litis pendentia or res judicata is that they are based on the same cause of action. The criminal action is based on

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

culpa criminal, while the independent civil action maybe based on culpa contractual or culpa acquillana. (Lim vs. Kou Co Ping) The offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict - without violating the rule on non-forum shopping. The two cases can proceed

simultaneously and independently of each other. (Casupanan vs. Laroya) No forum shopping: The essence of forum shopping is the filing of multiple

the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased.

suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Although the cases filed by [the offended party] arose from the same act or omission of [the offender], they are, however, based on different causes of action. The criminal cases for estafa are based on culpa criminal while the civil action for collection is anchored on culpa contractual. Moreover, there can be no forumshopping in the instant case because the law expressly allows the filing of a separate civil action which can proceed independently of the criminal action.

Effect of death of the accused after arraignment during the pendency of the criminal action: 1. Civil liability arising from delict – extinguished;

(Lim vs. Kou Co Ping)

2.

If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. (n)

Limitation: on instituting a separate civil action, is the rule on double

Independent civil actions arising from contract or quasi-delict – may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be.

recovery under Art. 2177 of the Civil Code.

Accused (not the offended party) can file a civil action, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in a civil case: no forum shopping: Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code.

The criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal case. Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicted on a source of obligation other than delict. (People vs. Romero)

Before arraignment: case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. Substitution of heirs of the accused: 1.

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles. Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit: "SECTION 1. Institution of criminal and civil actions. – (a) x x x. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action." (Emphasis supplied) Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action. The accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. (Casupanan vs. Laroya) D.

EFFECT OF DEATH ON THE CIVIL ACTION

Section 4. Effect of death on civil actions. — The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of



2. 3.

E.

May be had even without requiring the appointment of an executor or administrator; The court may appoint a guardian ad litem for the minor heirs; The court shall order such legal representative(s) to appear and be substituted within thirty days from notice. PREJUDICIAL QUESTION

Section 6. Suspension by reason of prejudicial question. — A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (6a)

Where to file petition for suspension: 1. 2.

if the criminal action has not been filed in court for trial - Prosecutor or the court conducting the preliminary investigation; If already filed – the court trying the criminal action at any time BEFORE the prosecution rests.

Section 7. Elements of prejudicial question. — The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (5a)

Definition of Prejudicial Question: A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

For the purpose of filing an information

For a prejudicial question in a civil case to suspend criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.

A process to determine whether a crime is committed and the accused or respondent is probably guilty thereof and this is conducted by the prosecutor

Requisites: 1. 2. 3.

the civil case involves facts intimately related to those upon which the criminal prosecution would be based; in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and jurisdiction to try said question must be lodged in another tribunal.

Purpose of Preliminary Investigation: to determine whether 1. 2.

(Magestrado vs. People)

The rule is clear that the civil action must be instituted first before the filing of the criminal action. (Pimentel vs. Pimentel)

Case for cancellation of mortgage and for collection of some of money NOT prejudicial to the criminal action for perjury in an affidavit of loss of owner’s duplicate certificate of title; the civil cases and the criminal case can proceed independently of each other. Regardless of the outcome of the two civil cases, it will not establish the innocence or guilt of the petitioner in the criminal case for perjury. The purchase by petitioner of the land or his execution of a real estate mortgage will have no bearing whatsoever on whether petitioner knowingly and fraudulently executed a false affidavit of loss of TCT No. N-173163. (Magestrado vs. People)

Action for annulment of marriage NOT prejudicial to a criminal case for parricide: The relationship between the offender and the victim the the the the

The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue in parricide is whether the accused killed the victim. (Pimentel vs. Pimentel) IV. RULE 112: PRELIMINARY INVESTIGATION A.

DEFINITION/DESCRIPTION

Section 1. Preliminary investigation defined; when required. — Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. (1a)

When Applicable: if the offense carries a penalty of AT LEAST 4 years, 2 months and 1 day. DISTINGUISHED FROM PRELIMINARY EXAMINATION: Preliminary investigation Preliminary examination Quantum of evidence: probable cause Executive function Judicial function

a crime has been committed; and there is a probable cause to believe that the accused is guilty thereof.

(Burgundy Realty Corporation vs. Josefa Reyes)

Civil action must have been filed FIRST: Section 7(a) of Rule 111 provides that one of the elements of a prejudicial question is that the “previously” instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action.

distinguishes the crime of parricide from murder or homicide. However, issue in the annulment of marriage is not similar or intimately related to issue in the criminal case for parricide. Further, the relationship between offender and the victim is not determinative of the guilt or innocence of accused.

The purpose is for the issuance or non-issuance of the warrant of arrest Conducted by the judge, to determine the probability also of the accused having committed a crime and therefore a warrant of arrest is issued

Probable Cause: has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. (Fenequito vs.

Vergara) Evidence Necessary: A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed by the suspects. It need not be based on clear and convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. (Fenequito vs. Vergara) It does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. The complainant need not present at this stage proof beyond reasonable doubt. A preliminary investigation does not require a full and exhaustive presentation of the parties' evidence. Precisely, there is a trial to allow the reception of evidence for both parties to substantiate their respective claims. (Burgundy Realty Corporation

vs. Josefa Reyes) B.

WHO MAY CONDUCT

2. Officers authorized to conduct preliminary investigations. — The following may conduct preliminary investigations:

Section

(a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (2a)

Preliminary Investigation primarily an executive function: The conduct of a preliminary investigation is primarily an executive function.

(Abanado vs. Bayona) It does not contemplate a judicial function. It is essentially an inquisitorial proceeding, and often, the only means of ascertaining who may be reasonably charged with a crime. Prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary investigation, subject to review by the Secretary of Justice. The duty of the Court in appropriate cases is merely to determine whether the executive determination was done without or in excess of jurisdiction or with grave abuse of discretion. Resolutions of the Secretary of Justice are not subject to review unless made with grave abuse. (Heirs of Tria vs. Obias)

Other officers as may be authorized by law, include: 1.



The Ombudsman;

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

2. 3.

Note: if the DOJ or the OP finds that there is no probable cause, they will direct the prosecutor to file a motion to withdraw Information. It is still within the jurisdiction of the court to grant or deny such motion.

The COMELEC; Special Panel of Prosecutors

Process: 1. 2. 3.

4. 5. 6. 7.

Offended party files a complaint-affidavit (different from complaint directly filed in court to commence a criminal action); The fiscal shall issue a subpoena (summons) directing the respondent to file a counter-affidavit within 10 days; Respondent files a counter-affidavit, otherwise, the prosecutor may proceed with the conduct of preliminary investigation with the evidence of the complainant. *a subpoena is not necessary to acquire jurisdiction. Complainant may file a reply-affidavit; Respondent may file a rejoinder; Complainant may file a surrejoinder; Fiscal will submit for resolution In Manila, Makati, QC and Caloocan – a case filed is raffled to an investigating prosecutor, the one who will determine whether a case should be filed in court. Before the chief prosecutor signs the resolution for the filing of an information, the same is reviewed by a reviewing prosecutor.

2.

File for suspension of arraignment. However, the suspension should not exceed 60 days. After which, the arraignment may proceed.

The justice secretary is not precluded from exercising his power of review over the investigating prosecutor even after the information has already been filed in court. However, the justice secretary’s subsequent resolution withdrawing the information or dismissing the case does not cause the court to lose jurisdiction over the case. In fact, the court is duty-bound to exercise judicial discretion and its own independent judgment in assessing the merits of the resulting motion to dismiss filed by the prosecution

When Appeal to the Office of the President from the decision of the DOJ may be had? 1. 2.

3. 4.

Once filed, another prosecutor called the trial prosecutor, will be the one who prosecutes the case before the court.

Those involving offenses punishable by reclusion perpetua to death Wherein new and material issues are raised a. which were not previously presented before the DOJ and b. were not ruled upon in the subject decision/order/resolution The prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution/order/decision, and The appeal or petition for review is filed within thirty (30) days from such notice. (Memorandum Circular No. 58)

Action to be taken: 8.

The investigating prosecutor will issue, based on his findings, either: a. An Information if finding probable cause – he then attaches a draft information to be reviewed by the reviewing prosecutor before signature of the chief prosecutor, or the chief prosecutor himself reviews the resolution. The chief prosecutor may overturn the findings of the investigating prosecutor, the former would then dismiss the case. In this case, there is no need to return the information to the investigating prosecutor. b.

A Resolution if not finding probable cause – he issues a resolution to that effect for review by the chief or reviewing prosecutor. If the chief/reviewing prosecutor finds probable cause, contrary to the findings of the investigating prosecutor, the chief prosecutor himself files the Information without returning it to the investigating prosecutor.

Resolution of investigating prosecutor, after being overturned by the chief prosecutor, MAY still form part of the records: attachment of the overturned resolution to the filing of Information is optional: there is nothing in the DOJ- National Prosecution Service (DOJ-NPS) Manual requiring the removal of a resolution by an investigating prosecutor recommending the dismissal of a criminal complaint after it was reversed by the provincial, city or chief state prosecutor. Nonetheless, we also note that attaching such a resolution to an Information filed in court is optional under the aforementioned manual. The DOJ-NPS Manual states that the resolution of the investigating prosecutor should be attached to the information only "as far as practicable." Thus, such attachment is not mandatory or required under the rules.

Case already filed in court: once an Information has been filed in court, the court has an absolute control over the case. (Ramiscal vs. Sandiganbayan)

1. 2.

the Office of the President MAY order the Secretary of Justice to reopen/review the case; re-examine the merits of the appeal

Court’s finding of probable cause: Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with abuse of discretion amounting to want of jurisdiction. However, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation when necessary for the orderly administration of justice, or to avoid oppression or multiplicity of actions. (Heirs of Tria vs. Obias)

Conspiracy need not be proven in finding probable cause: whether or not respondent actually conspired with Aclan and Ona need not be fully resolved during the preliminary investigation. The absence or presence of conspiracy is factual in nature and involves evidentiary matters. The same is better left ventilated before the trial court during trial, where the parties can adduce evidence to prove or disprove its presence. (Heirs of Tria vs. Obias) C.

PROCEDURE IN METRO MANILA VS. OUTSIDE METRO MANILA

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

Remedies of accused if an Information is already filed in court: 1.

File for petition for review before the DOJ on the finding of probable cause; After which, an appeal may be had before the Office of the President.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (3a) Section 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the



corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (4a) Section 5. Resolution of investigating judge and its review. — Within ten (10) days after the preliminary investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint. Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is found against him. (5a) Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. (b) By the Municipal Trial Court. — When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant or arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If the findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (c) When warrant of arrest not necessary. — A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a)

RTC; Action of the Court: upon filing of the Information, the court may:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

1.

2. 3.

Issue a warrant of arrest – if the determination of probable cause is upheld, since there is always preliminary investigation for cases filed with the RTC. Dismiss the case – if the evidence on record fails to establish probable cause. Conduct a hearing for finding of probable cause.

MTC: 1. 2.

If the case underwent preliminary investigation – same procedure as with the RTC; If without preliminary investigation – a. The court can issue SUMMONS (instead of a warrant) if there is probable cause; b. Dismiss the case for lack of probable cause; c. Conduct a hearing.

Summary Procedure: 1.

2.

No warrant is issued, as provided under Sec. 16 of the Revised Rules on Summary Procedure which categorically states "the court shall not order the arrest of the accused except for failure to appear whenever required." No preliminary investigation is required since the same is only required if the penalty at least 4 years, 2 months and 1 day.

as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)

Inquest: is the summary investigation conducted by an inquest prosecutor concerning an accused arrested without a warrant, for the purpose of filing an Information, without need of a preliminary investigation. It is an inquiry of the prosecutor whether the accused should be detained or released for further preliminary investigation. In the absence of an inquest prosecutor, the complaint may be filed by the offended party or the peace officer directly with the court. However, the accused is not barred from asking for a preliminary investigation, provided waiver of Art. 125 of the Revised Penal Code is obtained.

Art. 125 of the Revised Penal Code:

Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. —

Article 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).

(a) If filed with the prosecutor. — If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. (b) If filed with the Municipal Trial Court. — If the complaint or information is filed directly with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching question and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (9a)

Under the Rules on Summary Procedure, if the penalty imposable on the crime charged is less than 4 years, 2 months and 1 day, a preliminary investigation is no longer required. D.

INQUEST

Waiver: Delay in the delivery refers to the filing of the information, rather than the information being immediately filed in court, the accused may try to delay the same by asking for a preliminary investigation, provided he signs the waiver of the above Art. 125.

Applicability: if the crime for which accused was arrested is not subject to a preliminary investigation, inquest will not apply. If the accused did not signify his desire to have a preliminary investigation, it may be deemed waived if he is arraigned and he entered his plea: the accused-appellant signified his readiness to be arraigned, the Court can only conclude that he waived his right to have a preliminary investigation, when he did, in fact, pleaded "Not Guilty" upon his arraignment. (People vs. Valencia) E.

QUANTUM OF EVIDENCE

PRIMA FACIE VS. PROBABLE CAUSE: Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. Evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence. [H. Black, et al., BLACKS LAW DICTIONARY

Section 7. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

1190 (6th ed.,1990)]

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,

OTHER PROVISIONS:



On the other hand, probable cause has been defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 8. Records. — (a) Records supporting the information or complaint. — An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case.

or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a) VALID WARRANTLESS ARRESTS 1.

(b) Record of preliminary investigation. — The record of the preliminary investigation, whether conducted by a judge or a fiscal, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party. (8a)

In Flagrante Delicto Rule: “When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;”

“has” – still in the vicinity of continuance. If it were “had,” it would have been done already.

V.

RULE 113: ARREST

“attempting to commit” – there must be an overt act. Otherwise, it is only in the mind and the person cannot be arrested. Example: The act of pouring gasoline all over the place is an overt act in committing arson.

A.

DEFINITION

Whose presence? The private person or the peace officer.

Section 1. Definition of arrest. — Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (1)

2.

Hot Pursuit Rule: “When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it”

The arresting individual must know through his personal knowledge, not merely hearsay.

HOW MADE: Section 2. Arrest; how made. — An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

Example: A told a policeman that X shot Y. The policeman cannot arrest X without a warrant based on the hearsay.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (2a)

Under the rule of evidence, perception is not limited to seeing. Who may testify? One who may perceive, and perceiving can make known his perception. Perception is not limited to seeing. Any exercise of any of the 5 senses may be considered as perception.

TIME OF MAKING ARREST: Section 6. Time of making arrest. — An arrest may be made on any day and at any time of the day or night. (6) DUTY OF ARRESTING OFFICER:

Example: A police officer heard a gunshot. He knew it was a .45 caliber based on his training. He saw a man running, holding a gun. He can arrest the man because he had personal knowledge. Although he did not see what happened, he heard it. 3.

EXECUTION OF WARRANT: Section 4. Execution of warrant. — The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor. (4a) B.

WARANTLESS ARRESTS

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station



Escape Rule: “When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.”

Section 3. Duty of arresting officer. — It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay. (3a) 4.

Abscond Rule, under Rule 114, Sec. 23, par. 2: “An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.”

Procedure: delivery to the nearest police station or jail: When you arrest, you can immediately file an Information against whom you arrested, provided you complied with Section 6 of Rule 112 regarding inquest. You file the information with the court. There is no need for preliminary investigation proper. C.

METHODS OF ARREST:

1.

BY AN OFFICER a.

WITH WARRANT:

Section 7. Method of arrest by officer by virtue of warrant. — When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (7a)

Inform the accused of: 1.

The authority of the arresting officer;

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

2.

The fact that a warrant has been issued, but need not have the warrant with him; The cause of the arrest.

3.

The above does not apply if: 1. The accused flees; 2. The accused forcibly resists before the officer has the opportunity to inform him; 3. When the giving of such information will imperil the arrest. Section 10. Officer may summon assistance. — An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. (10a) Section 11. Right of officer to break into building or enclosure. — An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. (11a) Section 12. Right to break out from building or enclosure. — Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. (12a) Section 13. Arrest after escape or rescue. — If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (13) b.

WITHOUT A WARRANT:

Section 8. Method of arrest by officer without warrant. — When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest. (8a) 2.

BY A PRIVATE PERSON:

Section 9. Method of arrest by private person. — When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. (9a) D.

RIGHT TO VISIT PRISONER; COUNSEL OR RELATIVE

Section 14. Right of attorney or relative to visit person arrested. — Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. (14a) RIGHTS OF PERSONS ARRESTED: Republic Act No. 7438 April 27, 1992 AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF



Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights. Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. (b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.lawphi1Ÿ (c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

Objection to irregularity of arrest must be made BEFORE the accused enters his plea on arraignment: Having failed to move for the quashing of the information against them before their arraignment, appellants are now estopped from questioning the legality of their arrest. Any irregularity was cured upon their voluntary submission to the trial court’s jurisdiction. (People

vs. Vasquez) VI. RULE 114: BAIL A.

CONSTITUTIONAL BASIS

Art. III, Sec. 13 of the 1987 Constitution: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

conviction, be bailable by sufficient sureties, or be released on recognizable as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Bail protects the right of the accused to due process and to be presumed innocent. (Juan Ponce Enrile vs. Sandiganbayan) Purpose: is to guarantee the appearance of the accused at the trial, or whenever so required by the trial court. (Juan Ponce Enrile vs. Sandiganbayan) B.

DEFINITION/DESCRIPTION

Section 1. Bail defined. — Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. (1a)

Civil cases: in civil cases, there is a bond, which may either answer for damages or for the award. In criminal cases, there are bail bonds, in order to provide temporary liberty to a person in custody. C.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (5a)

CONDITIONS/REQUIREMENTS

Section 2. Conditions of the bail; requirements. — All kinds of bail are subject to the following conditions: (a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper court whenever required by the court of these Rules; (c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final judgment. The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions herein required. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail. (2a) Section 3. No release or transfer except on court order or bail. — No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. (3a) D.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

GENERAL RULE: any person, before being convicted of any criminal offense, shall be bailable, unless he is charged with a capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, where the evidence of his guilt is strong. (Juan Ponce Enrile vs. Sandiganbayan) BAIL; AS A MATTER OF RIGHT: 1. Cases before the MTCs – all cases, since these courts do not have jurisdiction to try capital offenses, or offenses punishable with reclusion perpetua or life imprisonment; 2. Prior to conviction with the RTC – where the offense is not punishable by death, reclusion perpetua or life imprisonment. BAIL; AS A MATTER OF DISCRETION: 1. Prior to conviction with the RTC – for offenses punishable by death, reclusion perpetua or life imprisonment depending if the evidence of guilt is strong. 2. Upon conviction with the RTC – for offenses punishable by death, reclusion perpetua or life imprisonment; 3. Upon conviction with the RTC – if the penalty imposed is imprisonment exceeding six years, provided none of the circumstances enumerated under par. 3 of Sec. 5, Rule 114 is present. If any of the said circumstances are present, bail should not be granted.

Bail Pending Appeal; Stages: 1.

WHEN

Section 4. Bail, a matter of right; exception. — All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognize as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (4a) Section 5. Bail, when discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from nonbailable to bailable, the application for bail can only be filed with and resolved by the appellate court.



2.

The determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and The exercise of discretion stage where, assuming the appellant’s case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice; on the basis thereof, it may either allow or disallow bail. On the other hand, if the appellant’s case falls within the second scenario, the appellate court’s stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. (Jose Antonio Leviste vs. CA)

Guidelines in resolving bail applications of the accused who is charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

1.

2.

3. 4.

In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation. (Sec. 18, Rule 114); Where the bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion. (Sec. 7 and 8); Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; if the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied. (Juan

The Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal proceeding. A potential extradite may be subject to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings.

Ponce Enrile vs. Sandiganbayan citing Cortes vs. Castral)

Sandiganbayan)

(Government of Hong Kong Special Administrative Region vs. Olalia, Jr.) Even if the capital offense charged is bailable but the probability of flight is high, bail may be denied: Even if the capital offense charged is bailable owing to the weakness of the evidence of guilt, the right to bail may justifiably still be denied if the probability of escape is great. (People vs.

No Bail was recommended by prosecution: the accused should file a petition for bail and the same is set for hearing. The prosecution should be given an opportunity to comment. Absence such, any bail issued will be void.

Section 6. Capital offense defined. — A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death. (6a)

Reasonable Notice to the prosecution: the prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong.

Section 7. Capital offense of an offense punishable by reclusion perpetua or life imprisonment, not bailable. — No person charged with a capital offense, or an offense punishable by reclusion perpetua or

If the filing of the petition is only the day before the hearing, at close to noontime, it cannot be said that the prosecution was afforded reasonable notice and opportunity to present evidence after it received a copy of the petition minutes before it was filed in court. (Floresta vs. Ubiadas)

Section 8. Burden of proof in bail application. — At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify. (8a)

Hearing: is mandatory in granting bail whether it is a matter of right or discretion. (Zuo vs. Cabebe) Penalty “imposable” is the basis not the maximum “possible” penalty: Sec 13 “charged with an offense punishable by.” It is, therefore, the

life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. (7a)

maximum penalty provided by the offense that has bearing and not the possibility of mitigating circumstances being appreciated in the accused’s favor. (Juan Ponce Enrile vs. Sandiganbayan)

Quantum of Evidence required for bail: is clear and convincing evidence, or that amount of evidence that is highly and substantially more probable to be true than not.

Humanitarian Reasons in the grant of bail: the national commitment to

E.

uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the community; and (2) that there exists special, humanitarian and compelling circumstances. The social and political standing of Enrila and his having immediately surrendered to the authorities upon his being charged in court indicate that the risk of flight or escape from this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this country. The currently fragile state of Enrile’s health presents another compelling justification for his admission to bail. Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during his trial. (Juan Ponce Enrile vs. Sandiganbayan)

Bail is applicable in extradition cases: if bail can be granted in deportation cases, the SC saw no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence and guilt of the person detained is not in issue.



KINDS 1.

Corporate Surety

Section 10. Corporate surety. — Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors. (10a)

Right of surety for non-payment of premiums: in case the accused fails to pay the annual premium due, the surety can ask that the accused be returned to prison. Note that the effectivity of bail is from approval upto final conviction or acquittal. However, the bonding company may file a motion to surrender the accused. 2.

Property Bond

Section 11. Property bond, how posted. — A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Register of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefor, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention. (11a) Section 12. Qualifications of sureties in property bond. — The qualification of sureties in a property bond shall be as follows: (a) Each must be a resident owner of real estate within the Philippines; (b) Where there is only one surety, his real estate must be worth at least the amount of the undertaking; (c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution. (12a) Section 13. Justification of sureties. — Every surety shall justify by affidavit taken before the judge that he possesses the qualifications prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified. (13a)

Ownership of property: need not be that of the accused, it can be owned by a third party, provided he is a resident of the Philippines.

Process: a. b.

c.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. (16a) F.

AMOUNT OF BAIL; GUIDELINES

Section 9. Amount of bail; guidelines. — The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial ability of the accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail.

Amount of Bail: should be high enough to assure the presence of the accused when so required, but it should be no higher than is reasonably calculated to fulfill the purpose. (Juan Ponce Enrile vs. Sandiganbayan)

3.

G.

4.

Cash Bond

Recognizance: is an obligation of record entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act particularly the appearance of the accused for trial.

Section 15. Recognizance. — Whenever allowed by law or these Rules, the court may release a person in custody to his own recognizance or that of a responsible person. (15a)

Applicability: is only for light offenses. Two modes of release: 2.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribe for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

Accused posts a property bond; He is given 10 days within which to have the bond annotated on the: (1) Certificate of title on file with the Register of Deeds, if registered. If unregistered, with the space provided for such in the Registration Books; (2) Tax declaration with the respective assessor. Accused goes back to court for submission of proof of annotation.

Section 14. Deposit of cash as bail. — The accused or any person acting in his behalf may deposit in cash with the nearest collector or internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. (14a)

1.

Section 16. Bail, when not required; reduced bail or recognizance. — No bail shall be required when the law or these Rules so provide.

Accused’s own recognizance – the court knows the accused and believes that he will show up when summoned; A responsible person’s recognizance – the court knows the third person and believes he will bring the accused to the court when summoned.

Excessive bail shall not be required. (9a)

RTC/MTC exercising special jurisdiction Section 17. Bail, where filed. — (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. (b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or on appeal. (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. (17a)

Where bail is filed: 1. 2. 3. 4.

5.



WHERE TO FILE BAIL

In the court where the case is pending; In the absence or unavailability of the judge thereof, with any RTC judge; If there is no RTC judge, with any MTC judge. HOWEVER, it MUST be filed with the court where the case is pending, if: a. The bail is a matter of discretion or b. The accused seeks to be released on recognizance. If there are no charges in court yet, the bail may be applied with any court in the place where he is held.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 18. Notice of application to prosecutor. — In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. (18a) Section 19. Release on bail. — The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule. Whenever bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed. (19a)

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. (23a)

Sec. 23, last par.: provides for the additional warrantless arrest. Section 24. No bail after final judgment; exception. — No bail shall be allowed after the judgment of conviction has become final. If before such finality, the accused has applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. (24a)

Conviction becomes final: no more bail may be allowed. This is because no bail may be allowed after the accused commenced to serve his sentence.

Section 20. Increase or reduction of bail. — After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody. (20a) H.

FORFEITURE VS. CANCELLATION OF BAIL

Section 21. Forfeiture of bond. — When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his nonproduction; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. (21a)

No automatic re-arrest: if the accused fails to appear before the trial, the bondsmem is given 30 days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of bail. Section 22. Cancellation of bail. — Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bond. (22a)

Before conviction: the accused may be allowed temporary liberty under his original bail if pending the finality of the conviction he applies for probation; or if he is incapable of filing one, the court may release him on recognizance. Section 25. Court supervision of detainees. — The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and their prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees. In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein. A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information. (25a) Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. — An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. (n)

Application for bail not a waiver of the right to preliminary investigation: There must be clear and convincing evidence that the accused had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. (Okabe vs. Gutierrez)

Forfeiture vs. Cancellation: Forfeiture happens when the accused fails to

VII. RULE 115: RIGHTS OF THE ACCUSED

appear before the court when his presence was required. Whereas a bail bond is cancelled upon acquittal, conviction, dismissal or execution of judgment.

CONSTITUTIONAL VS. STATUTORY RIGHTS

Section 23. Arrest of accused out on bail. — For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion.



Section 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

(b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to crossexamine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law. (1a)

To be presumed innocent until the contrary is proved beyond reasonable doubt: It is the duty of the prosecution to prove that all elements of the crime are attendant. Otherwise, the presumption of innocence prevails. (Del Castillo vs. People)

Right to be heard: It is well settled that "to be heard" does not only mean oral arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, has been accorded, no denial of procedural due process exists. (Miguel vs.

Sandiganbayan) Right to Counsel: That he stood at the police line-up without the assistance of counsel did not render Sumulong’s identification of Lara inadmissible. The right to counsel is deemed to have arisen at the precise moment custodial investigation begins and being made to stand in a police line-up is not the starting point or a part of custodial investigation. (People vs. Lara) Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. This is because during a police line-up, the process has not yet shifted from the investigatory to the accusatory and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of the line-up.

(People vs. Amistuzo) Right Against Self-Incrimination: The right is NOT to "be compelled to be a witness against himself" 1.

Witness NOT the accused:

It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to



testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense that he may refuse to answer on the strength of the constitutional guaranty. (People vs. Ayson)

It must be invoked by the witness not by the judge: Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time (People vs. Ayson) 2.

Accused as Witness

The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words — unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, and answer any question. And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith. He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged.

Rights under Custodial Interrogation These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities. 1) he shall have the right to remain silent and to counsel, and to be informed of such right, 2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; and 3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." (People vs. Ayson)

A defendant on trial or under preliminary investigation or in court is not under custodial interrogation: His interrogation by the police, if any there had been

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation". In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT — a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify in his own behalf, subject to cross-examination by the prosecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted.

Right to Speedy, Impartial and Public Trial: This right requires that there be a trial free from vexatious, capricious or oppressive delays. The right is deemed violated when the proceeding is attended with unjustified postponements of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause or justifiable motive. In determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. The conduct of both the prosecution and the defense must be weighed. Also to be considered are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice wrought upon the defendant. A dismissal of the case pursuant to the right of the accused to speedy trial is tantamount to acquittal. VIII. RULE 116: ARRAIGNMENT VS. PLEA A.

WHAT IS ARRAIGNMENT

Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of accusation against him. It is an indispensable requirement of due process. Section 1. Arraignment and plea; how made. — (a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information. (b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him. (1a) (d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (n)

(e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment. (n) (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (cir. 1-89) (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. (sec. 2, cir. 38-98) BASIC REQUIREMENTS IN ARRAIGNMENT: 1. Made in the court where the complaint or information was filed; 2. Must be made in open court; 3. The accused must be furnished a copy of the Information(s); 4. The reading must be made in a language or dialect known to the accused;

Language or dialect known to the accused: The requirement that the reading be made in a language or dialect that the accused understands and knows is a mandatory requirement, just as the whole of said Section 1 should be strictly followed by trial courts. This the law affords the accused by way of implementation of the all-important constitutional mandate regarding the right of an accused to be informed of the precise nature of the accusation leveled at him and is, therefore, really an avenue for him to be able to hoist the necessary defense in rebuttal thereof. It is an integral aspect of the due process clause under the Constitution. (People vs. Estomaca) Presence of the offended party: is required for purposes of: 1. 2. 3.

However, in case of his failure to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. Section 6. Duty of court to inform accused of his right to counsel. — Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed a counsel of his choice, the court must assign a counsel de oficio to defend him. (6a) Section 7. Appointment of counsel de oficio. — The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused. (7a) Section 8. Time for counsel de oficio to prepare for arraignment. — Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment. (8) B.



Plea bargaining; Determination of civil liability; and Other matters requiring his presence.

KINDS OF PLEA

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

1. 2. 3. 4. 5.

Conditional Unconditional Negative/Indirect (refusal to plead) Inverted Plea (pleads guilty with exculpatory evidence) Improvident Plea (not knowing fully well)

Unconditional Plea is the only one that is valid.

The conduct of the searching inquiry remains the duty of judges as they are mandated by the rules to satisfy themselves that the accused had not been under coercion or duress; mistaken impressions; or a misunderstanding of the significance, effects, and consequences of their guilty plea. This requirement is stringent and mandatory. As such, the plea of guilty may still be considered improvident even if the consequences thereof were explained by the counsel. (People vs. Janjalani)

Improvident Plea is one where the accused did not understand or an unintelligent plea which may be withdrawn at any time before judgment of conviction becomes final: Section 5. Withdrawal of improvident plea of guilty. — At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. (5)

Section 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. — When the accused pleads guilty to a noncapital offense, the court may receive evidence from the parties to determine the penalty to be imposed. (4)

Purpose of presentation of evidence: is to determine the appropriate penalty, unlike in a capital offense where the evidence is necessary to determine guilt.

Effect of Improvident Plea: 1.

2.

C.

Re-arraignment, if the sole basis of the conviction was the plea of guilty (People vs. Janjalani) since no valid judgment can be rendered upon an invalid arraignment. (People vs. Estomaca) No effect on conviction: where the conviction can be based on independent evidence proving the commission by the person accused of the offense charged. (People vs. Janjalani) PLEA OF GUILTY TO A CAPITAL OFFENSE VS. NON-CAPITAL OFFENSE

Section 3. Plea of guilty to capital offense; reception of evidence. — When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf. (3a)

Accused pleads guilty to a capital offense: 1.

2.

The a. b. The

court is required to conduct searching questions to verify: Voluntariness; and Full comprehension. prosecution shall present evidence to prove the accused’s guilty.

Valid defense was put up during the trial: the accused will be re-

Accused presents evidence: he should be allowed by the court, but this can be indicative of an improvident plea. Note that the above provision provides that “the court may receive evidence from the parties” not only the prosecution. Section 2. Plea of guilty to a lesser offense. — At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (sec. 4, circ. 38-98) PLEA BARGAINING:

Definition: is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge. (Daan vs. Sandiganbayan) When: Ordinarily during pre-trial or arraignment. However, it may also be done during trial, even after the prosecution has presented evidence and rested its case. (Daan vs. Sandiganbayan)

arraigned.

No amendment required: as expressly provided in the last sentence of Sec. Hearing: is still necessary and evidence is required to be presented to

2.

determine the precise degree of culpability.

Requisites: Full comprehension; accused must be warned of the consequences of his plea of guilt: accused should be specifically warned that on his plea of guilty, he would definitely and in any event be given the death penalty

a. b.

Should be with the consent of the offended party and the prosecutor; Should be to a lesser offense which is necessarily included in the offense charged.

under the New Law, as the trial court calls Republic Act No. 7659. He should be categorically advised that his plea of guilty would not under any circumstance affect or reduce the death sentence as he may have believed or may have been erroneously advised. Not infrequently, an accused pleads guilty in the hope, as we said, of a lenient treatment, or upon a bad advice or promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that he does not labor under these. mistaken impressions (People vs.

Basis of grant/denial:

Estomaca)

a.

Searching Inquiry: A searching inquiry, under the Rules, means more than

b.

informing cursorily the accused that he faces a jail term (because the accused is aware of that) but so also, the exact length of imprisonment under the law and the certainty that he will serve time at the national penitentiary or a penal colony. 1. 2. 3.

Asking about educational attainment is not enough; Mere warning of possibility of death or life sentence is not enough. The judge must determine whether there was coercion or the accused was placed under duress. (People vs. Estomaca)



Necessarily Included: when some of the essential elements or ingredients of the former as alleged in the complaint or information constitute the latter. And vice versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form part of those constituting the latter.

During pre-trial: the trial court’s grant/denial should neither be arbitrary nor capricious or whimsical. After prosecution has rested its case: the basis should be nothing more or nothing less than the evidence already in record. However, subsequent events and higher interests of justice may be considered in granting the plea bargaining in the exercise of the court’s equity jurisdiction, such as when, there is a favorable consideration from the prosecution, voluntary surrender and willingness to plea guilty to a lesser offense.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 9. Bill of particulars. — The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. (10a)

4.

5. BASIS: a motion for bill of particulars is based on the right of the accused to be informed of the nature and the cause of the offense(s) charged. 6. DEFINITION: a bill of particulars is the further specification of the charges or claims in an action, which an accused may avail of by motion before arraignment, to enable him to properly plead and prepare for trial. D. CIVIL CASES: In civil proceedings, a bill of particulars has been defined as a complementary procedural document consisting of an amplification or more particularized outline of a pleading, and is in the nature of a more specific allegation of the facts recited in the pleading. The purpose of a motion for bill of particulars in civil cases is to enable a party to prepare his responsive pleading properly. PURPOSE IN CRIMINAL CASES: to enable an accused: 1. to know the theory of the government’s case; 2. to prepare his defense and to avoid surprise at the trial; 3. to plead his acquittal or conviction in bar of another prosecution for the same offense; and 4. to compel the prosecution to observe certain limitations in offering evidence. The general function of a bill of particulars, whether in civil or criminal proceedings, is to guard against surprises during trial. It is not the function of the bill to furnish the accused with the evidence of the prosecution COVERAGE OF BILL OF PARTICULARS: covers only ultimate facts which should be stated in the Information in contrast to evidentiary facts. Ultimate facts is defined as “those facts which the expected evidence will support. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established.” It refers to the facts that the evidence will prove at the

The approximate dates of receipt, “in 2004 to 2010 or thereabout,” of the alleged kickbacks and commissions from the identified projects. At the very least, the prosecution should state the year when the kickbacks and transactions from the identified projects were received. The name of Napoles’ non-government organizations (NGOs) which were the alleged “recipients and/or target implementors of Enrile’s PDAF projects.” The government agencies to whom Enrile allegedly endorsed Napoles’ NGOs. The particular person/s in each government agency who facilitated the transactions need not be named as a particular. PRESENTATION OR INSPECTION PROSECUTION’S POSSESSION

OF

EVIDENCE

IN

Section 10. Production or inspection of material evidence in possession of prosecution. — Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies. (11a) E.

SUSPENSION OF ARRAIGNMENT

Section 11. Suspension of arraignment. — Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effective renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose;

trial.

(b) There exists a prejudicial question; and

Ultimate facts has also been defined as the principal, determinative, and constitutive facts on whose existence the cause of action rests; they are also the essential and determining facts on which the court's conclusion rests and without which the judgment would lack support in essential particulars.

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. (12a)

Evidentiary facts, on the other hand, are the facts necessary to establish the ultimate facts; they are the premises that lead to the ultimate facts as conclusion. They are facts supporting the existence of some other

IX. RULE 117 MOTION TO QUASH A.

WHEN AND HOW TO MOVE TO QUASH

alleged and unproven fact. BILL OF PARTICULARS VS. MOTION TO QUASH: A bill of particulars presupposes a valid Information while a motion to quash is a jurisdictional

defect on account that the facts charged in the Information does not constitute an offense. If the information does not charge an offense, then a motion to quash is in order. But if the information charges an offense and the averments are so vague that the accused cannot properly plead or prepare for trial, then a motion for a bill of particulars is the proper remedy. (Enrile vs. Sandiganbayan) In the Enrile case, the following were considered ultimate facts which justified a Bill of Particulars for the plunder case: 1. The particular overt act/s alleged to constitute the “combination or series of overt criminal acts” charged in the Information. 2. A breakdown of the amounts of the “kickbacks or commissions” allegedly received, stating how the amount of P172,834,500.00 was arrived at. 3. A brief description of the ‘identified’ projects where kickbacks or commissions were received.



Section 1. Time to move to quash. — At any time before entering his plea, the accused may move to quash the complaint or information. (1)

When: before arraignment. After arraignment, there can still be a motion to quash on the ground of lack of jurisdiction over the offense and over the person of the defendant B.

FORM

Section 2. Form and contents. — The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds. The court shall consider no ground other than those stated in the motion, except lack of jurisdiction over the offense charged. (2a) C.

GROUNDS

Section 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense;

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

(b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (3a)

Insufficiency of Evidence is not a ground for Motion to Quash; It is only a ground for dismissal after the prosecution rests its case – in a Demurrer: Otherwise, a grant of dismissal based on insufficiency of evidence violates the right of the prosecution to due process. It deprived the prosecution of its opportunity to prosecute its case and to prove the accused’s culpability. (People vs. Dumlao)

Duplicity of Offense – when a single Information charges more than one offense; not applicable when there are two or more Informations charging different offenses arising from a single act. A single act or incident might offend two or more entirely distinct and unrelated provisions of law, thus justifying the filing of several charges against the accused. (Soriano vs.

People) Remedy against denial of motion to quash: a special civil action for

MOTION TO DISMISS VS. MOTION TO QUASH Motion to Dismiss Pleading asserting the claim states no cause of action No jurisdiction over the subject matter No jurisdiction over the person of the defendant Plaintiff has no legal capacity to sue Litis pendentia Cause of action is barred by prior judgment or statute of limitation (res judicata) Condition precedent

Motion to Quash Facts do not constitute an offense No jurisdiction over the offense charged No jurisdiction over the person of the accused That the officer who filed the information had no authority to do so Duplicity of offense Double jeopardy

Does not conform to the prescribed form

GROUNDS: in motion to dismiss have similar grounds under motion to quash EXCEPT venue is improperly laid, since venue in criminal proceedings is jurisdictional.

After Plea: the following grounds may still be raised: 1. 2. 3. 4.

Lack of Jurisdiction over the offense; Prescription; Does not constitute an offense; and Double Jeopardy.

Motion to Quash vs. Provisional Dismissal: MOTION TO QUASH Filed before plea Should be in writing There are grounds specified No period by which the dismissal becomes permanent, unless prescribed

PROVISIONAL DISMISSAL Filed any time the action is pending Can be made through an oral motion No grounds are specified There is a period provided for the dismissal to become permanent

Test in determining if the facts charged do not constitute an offense: The fundamental test in determining the sufficiency of the material averments of an information is whether the facts alleged therein, which are hypothetically admitted, would establish the essentials elements of the crime defined by law. Evidence aliunde, or matters extrinsic of the Information, are not be considered. (People vs. Dumlao) The trial court may not consider a situation contrary to that set forth in the criminal complaint or information. Facts that constitute the defense of the petitioners against the charge under the information must be proved by them during trial. Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense. (Soriano vs. People)

certiorari is not the proper remedy to assail the denial of a motion to quash an information. The proper procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law

D.

AMENDMENT

Section 4. Amendment of the complaint or information. — If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. (4a) If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. (n)

Effect of Motion: the court shall order the amendment of the Information. If it still suffers the same defect or if the prosecution does not make the amendment, the motion to quash may be granted. E.

EFFECT OF GRANT/DENIAL OF MOTION TO QUASH

Section 5. Effect of sustaining the motion to quash. — If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody for another charge. (5a)

GRANTED: Court shall order another complaint or information be filed except in the following grounds: a. Criminal liability has been extinguished; b. Double jeopardy. The accused, if in custody, shall not be discharged. If no such order is made, or new information was filed within the time specified – the accused shall be discharged unless he is also in custody for another charge. Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. — An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3 (g) and (i) of this Rule. (6a)

Quashal of information: is generally without prejudice, except if the ground is that the criminal liability has been extinguished and double jeopardy.



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

DENIED: Remedies:

Without the accused’s express consent; exceptions: the rule is, for

1.

2.

Since the denial of the motion to quash is an interlocutory order, such may be the subject of a certiorari in case there is grave abuse of discretion; Proceed with trial and appeal in case of conviction.

double jeopardy to set in, the dismissal must not be with the express consent of the accused. Except: 1. Demurrer to Evidence; 2. Dismissal by violation of the right to speedy trial.

F.

DOUBLE JEOPARDY

Purely Capricious Dismissal – double jeopardy does not arise A purely capricious dismissal of an information deprives the State of a fair opportunity to prosecute and convict. It denies the prosecution a day in court. It is void and cannot be the basis of double jeopardy. (see People vs. Dumlao)

Section 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1 (f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. (7a)

Mere Reliance of the Court on the recommendation of the prosecutor, DOJ to dismiss the case constitutes grave abuse of discretion: Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. In thus resolving a motion to dismiss a case or to withdraw an Information, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice. It is the court’s bounden duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing of the motion. While the recommendation of the prosecutor or the ruling of the Secretary of Justice is persuasive, it is not binding on courts. By relying solely on the manifestation of the public prosecutor and the resolution of the DOJ Secretary, the trial court abdicated its judicial power and refused to perform a positive duty enjoined by law. The said Orders were thus stained with grave abuse of discretion and violated the complainant’s right to due process. They were void, had no legal standing, and produced no effect whatsoever. Since we have held that the March 17, 2004 Order granting the motion to dismiss was committed with grave abuse of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. Thus, double jeopardy has not set in. (Cerezo vs. People)

No double jeopardy: 1.

Res Judicata: in civil cases is the equivalent of double jeopardy. As such, the elements of res judicata may apply to double jeopardy, i.e., (1) there is a final judgment by a court of competent jurisdiction; (2) it is a judgment on the merits; and (3) there is identity of parties, cause of action and subject matter. Accordingly, for double jeopardy to attach, the first jeopardy must be valid.

Trial on the merits: does not necessarily mean that there is presentation of evidence. This requirements is complied with as long as the accused was given the OPPORTUNITY to present evidence.

2.

3.

The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1 (f) of Rule 116.

Section 8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

Requirements of Double Jeopardy: a.

First Jeopardy: 1. That the accused has been convicted; or 2. That the accused has been acquitted; or 3. The case against him was dismissed without his express consent. Note: if the case was dismissed due to a MOTION TO QUASH, double jeopardy will NOT attach since it is WITH CONSENT of the accused. The first jeopardy attaches only (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. (People vs. Dumlao)

b. c.

Judgment was rendered by a court of competent jurisdiction; The charge was upon a valid information



The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. (n) REQUIREMENTS: must be with: 1. The EXPRESS CONSENT of the accused and 2. NOTICE to the offended party PERIOD TO REVIVE: 1. 1 year – for offenses punishable by imprisonment not exceeding 6 years or a fine of any amount, or both. 2. 2 years – punishable by imprisonment of more than 6 years.

When does the period begin to run? Upon ISSUANCE of the order, not the receipt thereof.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

New Preliminary Investigation: The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. However, in a case wherein after the provisional dismissal of a criminal case, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed: 1. The original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged; or 2. If under a new criminal complaint, the original charge has been upgraded; or 3. If under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. (People vs. Lacson) Section 9. Failure to move to quash or to allege any ground therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8) X.

RULE 118: PRE-TRIAL

A.

PRE-TRIAL IN CRIMINAL CASE

Section 1. Pre-trial; mandatory in criminal cases. — In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and (f) such other matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (secs. 2 and 3, cir. 38-98)

Both are mandatory; Limits the trial to matters not disposed of during pre-trial; Mediation and conciliation are mandatory

Difference with civil cases: 1. 2. 3. 4.

There is no plea bargaining in civil cases; There is no “pre-trial brief” in criminal cases; There is no dismissal of the case if the offended party fails to appear during pre-trial; If the accused fails to appear in pre-trial: a. There is no presentation of the prosecution evidence ex-parte b. The accused can be arrested, if he has been properly notified and there is no valid reason for his absence; c. The bail may be forfeited. NOTE: However, that the accused may stipulate in the bail that he will no longer appear in other proceedings, as provided under Rule 115, Sec. 1(c), to wit: Section 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall be entitled to the following rights: xxx (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless



Admissions made during pre-trial not in writing: cannot be taken against the accused. Admissions may only be taken against the accused if signed by both the accused and the counsel. Section 2. Pre-trial agreement. — All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (sec. 4, cir. 38-98) B.

NON-APPEARANCE AT PRE-TRIAL; EFFECTS

Section 3. Non-appearance at pre-trial conference. — If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. (se. 5, cir. 38-98) C.

PRE-TRIAL ORDER

Section 4. Pre-trial order. — After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice. (3)

Mandatory: a pre-trial order is mandatory. The order guides the court in trial, the absence of which may be an irregularity prejudicial to the rights of the accused and may be a ground for a new trial under Sec. 2(a) under Rule 121. XI. RULE 119: TRIAL A.

Similarities: 1. 2. 3.

his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel.

SPEEDY TRIAL ACT Republic Act No. 8493 February 12, 1998 AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE SANDIGANBAYAN, REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT, AND MUNICIPAL CIRCUIT TRIAL COURT, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Title. - This Act shall be known as the "Speedy Trial Act of 1998." Section 2. Mandatory Pre-Trial in Criminal Cases. - In all cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan, the justice or judge shall, after arraignment, order a pre-trial conference to consider the following: (a) Plea bargaining; (b) Stipulation of Facts; (c) Marking for identification of evidence of parties; (d) Waiver of objections to admissibility of evidence; and (e) Such other matters as will promote a fair and expeditious trial.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 3. Pre-Trial Agreement. - All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used in evidence against the accused. The agreements in relation to matters referred to in Section 2 hereof is subject to the approval of the court: Provided, That the agreement on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the court when the same is contrary to law, public morals, or public policy. Section 4. Nonappearance at Pre-Trial Conference. - Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his/her lack of cooperation, the pre-trial justice or judge may impose proper sanctions or penalties. Section 5. Pre-Trial Order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice. Section 6. Time Limit for Trial. - In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of the Rules of Court. Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial. - The arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30) days from arraignment as fixed by the court. If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence. Section 8. Time Limit Following an Order for New Trial. - If the accused is to be tried again following an order of a court for a new trial, the trial shall commence within thirty (30) days from the date the order for a new trial becomes final, except that the court retrying the case may extend such period but in any case shall not exceed one hundred eighty (180) days from the date the order for a new trial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within thirty (30) days impractical. Section 9. Extended Time Limit. - Notwithstanding the provisions of Section 7 of this Act, for the first twelve-calendar-month period following its effectivity, the time limit with respect to the period from arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days. For the second twelve-month period the time limit shall be one hundred twenty (120) days, and for the third twelve-month period the time limit with respect to the period from arraignment to trial shall be eighty (80) days. Section 10. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence:



(a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) delay resulting from an examination of the accused, and hearing on his/her mental competency, or physical incapacity; (2) delay resulting from trials with respect to charges against the accused; (3) delay resulting from interlocutory appeals; (4) delay resulting from hearings on pre-trial motions: Provided, That the delay does not exceed thirty (30) days, (5) delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) delay resulting from a finding of the existence of a valid prejudicial question; and (7) delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of the accused or an essential witness. For purposes of this subparagraph, an accused or an essential witness shall be considered absent when his/her whereabouts are unknown and, in addition, he/she is attempting to avoid apprehension or prosecution or his/her whereabouts cannot be determined by due diligence. An accused or an essential witness shall be considered unavailable whenever his/her whereabouts are known but his/her presence for trial cannot be obtained by due diligence or he/she resists appearing at or being returned for trial. (c) Any period of delay resulting from the fact that the accused is mentally incompetent or physically unable to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and no motion for severance has been granted. (f) Any period of delay resulting from a continuance granted by any justice or judge motu propio or on motion of the accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this subparagraph shall be excludable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the accused in a speedy trial. Section 11. Factors for Granting Continuance. - The factors, among others, which a justice or judge shall consider in determining whether to grant a continuance under subparagraph (f) of Section 10 of this Act are as follows: (a) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (b) Whether the case taken as a whole is so novel, so unusual and so complex, due to the number of accused or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this Act. No continuance under subparagraph (f) of Section 10 shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the public prosecutor.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 12. Public Attorney's Duties Where Accused is Imprisoned. - If the public attorney knows that a person charged of a crime is preventively detained, either because he/she is charged of a bailable crime and has no means to post bail, or is charged of a nonbailable crime, or is serving a term of imprisonment in any penal institution, the public attorney shall promptly: (a) Undertake to obtain the presence of the prisoner for trial, or cause a notice to be served on the person having custody of the prisoner mandating such person to so advise the prisoner of his/her right to demand trial. (b) Upon receipt of a notice, the person having custody of the prisoner shall promptly advise the prisoner of the charge and of his/her right to demand trial. If at any time thereafter the prisoner informs the person having custody that he/she demands trial, such person shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the person having custody of the prisoner receives from the public attorney a properly supported request for temporary custody of the prisoner for trial, the prisoner shall be made available to that public attorney. Section 13. Remedy Where Accused is Not Brought to Trial Within the Time Limit. - If an accused is not brought to trial within the time limit required by Section 7 of this Act as extended by Section 9, the information shall be dismissed on motion of the accused. The accused shall have the burden of proof of supporting such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 10 of this Act. In determining whether to dismiss the case with or without prejudice, the court shall consider, among other factors, the seriousness of the offense, the facts and circumstances of the case which led to the dismissal, and the impact of a reprosecution on the implementation of this Act and on the administration of justice. Failure of the accused to move for dismissal prior to trial or entry of a plea of guilty shall constitute a waiver of the right to dismissal under this section. Section 14. Sanctions. - In any case in which counsel for the accused, the public prosecution or public attorney: (a) knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; (b) files a motion solely for the purpose of delay which he/she knows is totally frivolous and without merit;

the procedures established in the Rules of Court in punishing any counsel or public prosecutor pursuant to this section. Section 15. Rules and Regulations. - The Supreme Court shall promulgate rules, regulations, administrative orders and circulars which shall seek to accelerate the disposition of criminal cases. The rules, regulations, administrative orders and circulars formulated shall provide sanctions against justices and judges who willfully fail to proceed to trial without justification consistent with the provisions of this Act. Section 16. Funding. - For the effective implementation of the rules, regulations, administrative orders and circulars promulgated under this Act, the amount of Twenty million pesos (P20,000,000.00) annually shall be appropriated from the allocation of the Supreme Court under the General Appropriations Act. Thereafter, such additional amounts as may be necessary for its continued implementation shall be included in the annual General Appropriations Act. Section 17. Act Not a Bar to Speedy Trial Claim Under the Constitution. - No provision of this Act shall be interpreted as a bar to any claim of denial of speedy trial as required by Article III, Section 14(2) of the 1987 Constitution. Section 18. Repealing Clause. - All laws, presidential decrees, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 19. Separability Clause. - In case any provision of this Act is declared unconstitutional, the other provisions shall remain in effect. Section 20. Effectivity. - This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in any newspaper of general circulation: Provided, That Section 7 of this Act shall become effective after the expiration of the aforementioned third-calendar-month period provided in Section 9 of this Act.

Section 1. Time to prepare for trial. — 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 thirty (30) days from receipt of the pre-trial order. (sec. 6, cir. 38-98) TIME FRAMES: 1. Arraignment – within 30 days from the time the court acquired jurisdiction over the person of the accused, i.e., arrest or voluntary surrender. (Sec. 1[g] of Rule 116) 2. Pre-trial – after arraignment but still within the above 30 days. (Sec. 1,

Rule 118) (c) makes a statement for the purpose of obtaining continuance which he/she knows to be false and which is material to the granting of a continuance; or (d) otherwise willfully fails to proceed to trial without justification consistent with the provisions of this Act, the court may, without prejudice to any appropriate criminal and/or administrative charges to be instituted by the proper party against the erring counsel if and when warranted, punish any such counsel or attorney, as follows: (1) in the case of a counsel privately retained in connection with the defense of an accused, by imposing a fine not exceeding; fifty percent (50%) of the compensation to which he/she is entitled in connection with his/her defense of the accused; (2) by imposing on any appointed counsel de officio or public prosecutor a fine not exceeding Ten thousand pesos (10,000.00); and (3) by denying any defense counsel or public prosecutor the right to practice before the court considering the case for a period not exceeding thirty (30) days. The authority to punish provided for by this section shall be in addition to any other authority or power available to the court. The court shall follow



3. 4.

Trial – 30 days from receipt of the pre-trial order, or within 80 days from arraignment. (Sec. 6, Rule 119) Judgment – 180 days from the start of the trial. (Sec. 2, Rule 119)

Section 9. Remedy where accused is not brought to trial within the time limit. — If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this rule, the information may be dismissed on motion of the accused on the ground of denial of his right of speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (sec. 14, cir. 38-98)

Right to Speedy Trial: must be raised before the trial. If the same is invoked and granted by the trial court it amounts to a dismissal of the case and an acquittal such that re-filing thereof would amount to double jeopardy. This is an exception to the requirement that the dismissal should be without the express consent of the accused.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Right to Speedy Disposition of Cases: is a constitutional right and is different from right to speedy trial. They are, however, not mutually exclusive, the denial of the invocation of the right to speedy trial will not bar the invocation of the right to speedy disposition of cases.

(e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted.

Differences with Right to Speedy Trial:

(f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. (sec. 9, cir. 38-98)

1. 2. 3.

Speedy Disposition of Cases is based only on vexatious, capricious or oppressive delays May be invoked for as long as the action is pending. This right may be used in judicial, administrative, or quasi-judicial proceedings.

Dismissal may not be granted: if it is shown that there were diligent efforts on the part of the prosecution to proceed with the case.

Full dockets: not a ground for continuance and the delay is not considered

Section 2. Continuous trial until terminated; postponements. — Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. (2a)

Section 4. Factors for granting continuance. — The following factors, among others, shall be considered by a court in determining whether to grant a continuance under section 3(f) of this Rule. (a) Whether or not the failure to grant a continuance in the proceeding would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and (b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time established therein. In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of the court's calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor. (sec. 10, cir. 38-98)

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. (sec. 8, cir. 38-98). The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial. (n) Section 3. Exclusions. — The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) Delay resulting from an examination of the physical and mental condition of the accused; (2) Delay resulting from proceedings with respect to other criminal charges against the accused; (3) Delay resulting from extraordinary remedies against interlocutory orders; (4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; (5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) Delay resulting from a finding of the existence of a prejudicial question; and (7) Delay reasonably attributable to any period, not exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of an essential witness. For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence. (c) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.



an exclusion from the required periods.

Section 5. Time limit following an order for new trial. — If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend it but not to exceed one hundred eighty (180) days from notice of said order for a new trial. (sec. 11, cir. 38-98) Section 6. Extended time limit. — Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelvecalendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-month period, the limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days. (sec. 7, cir. 38-98) Section 7. Public attorney's duties where accused is imprisoned. — If the public attorney assigned to defend a person charged with a crime knows that the latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do the following: (a) Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial. (b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made available accordingly. (sec. 12, cir. 38-98)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 8. Sanctions. — In any case in which private counsel for the accused, the public attorney, or the prosecutor. (a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without merit; (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecution, as follows: (1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (P20,000.00); (2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these rules. (sec. 13, cir. 38-98) Section 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. — No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by section 14(2), article III, of the 1987 Constitution. (sec. 15, cir. 38-98)

jurisdiction, before an inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. (5a) Section 15. Examination of witness for the prosecution. — When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the order of the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. (7a)

Rule 23: Depositions Pending Action in Civil Cases cannot be applied to Criminal Proceedings: the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise.

Conditional Examination; construction: The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules. Grounds:

B.

ORDER OF TRIAL

Section 11. Order of trial. — The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of a provisional remedy in the case. (c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (d) Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. (3a) C.

1.

2.

Before whom may be taken: 1.

Section 13. Examination of defense witness; how made. — If the court is satisfied that the examination of a witness for the accused is necessary, an order will be made directing that the witness be examined at a specified date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior



Witness for the Prosecution: the testimonial examination should be made before the court, or at least before the judge, where the case is pending. To take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right to attend the proceedings but also deprive the trial judge of the opportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially intolerable when the witness' testimony is crucial to the prosecution's case against the accused. (Harry Go vs. People)

MODES OF DISCOVERY

Section 12. Application for examination of witness for accused before trial. — When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. (4a)

Prosecution: a. Witness is too sick or infirm to appear at the trial; b. Witness is about to depart from the Philippines with no definite day of return. Defense: the court is satisfied that the examination of a witness for the accused is necessary, e.g. the witness lives more than 100km.

2.

Witness for the Defense: deposition of the witness of the defense may be taken before a. Any judge, or, b. If not practicable, a member of the Bar in good standing so designated by the judge in the order, or, c. If the order be made by a court of superior jurisdiction, before an inferior court to be designated therein.

Section 14. Bail to secure appearance of material witness. — When the court is satisfied, upon proof or oath that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. (6a) D.

STATE WITNESS RULE

Section 16. Trial of several accused. — When two or more accused are jointly charged with any offense, they shall be tried jointly unless the court, in its discretion and upon motion of the prosecutor or any accused, orders separate trial for one or more accused. (8a)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 17. Discharge of accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) The is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. (9a) TWO WAYS ON HOW TO BECOME A STATE WITNESS: 1. By discharge from the criminal case (meaning, a case was initially filed) pursuant to Sec. 17 of Rule 119; and 2. Approval of his admission to the Witness Protection Program in accordance with RA No. 6981 (Witness Protection, Security and Benefit Act) CONDITIONS: 1. Two or more accused are jointly charged with the commission of an offense; 2. The motion for discharge is filed by the prosecution before it rests its case; 3. The prosecution is required to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge; 4. The accused gives his consent to be a state witness; and 5. The trial court is satisfied that: a. There is absolute necessity for the testimony of the accused whose discharge is requested; b. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; c. The testimony of said accused can be substantially corroborated in its material points; d. Said accused does not appear to be the most guilty; and, e. Said accused has not at any time been convicted of any offense involving moral turpitude.

Note that “absolute necessity” is likewise required and that the prosecution has no other direct evidence. This is when he alone has knowledge of the crime, and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution.

Exception to the requirement of corroboration: eye witness: the uncorroborated testimony of a state witness may be sufficient when it is shown to be sincere in itself because it is given unhesitatingly and in a straightforward manner and full of details which, by their nature, could not have been the result of deliberate afterthought. This exception, however, applies only if the state witness is an eyewitness since the testimony would then be direct evidence. The above-quoted Section 17 of Rule 119 actually assumes that the testimony of the accused sought to be discharged as a state witness would constitute direct evidence (i.e., that he or she is an eyewitness) in that it requires that there is no other direct evidence, except the testimony of the said accused. However, if the state witness is NOT an eye witness, and his testimony is only circumstantial, the same MUST BE CORROBORATED by other evidence.

(People vs. Anabe) Not most guilty: suppose A, B and C are all principals charged with highway robbery, the prosecution cannot get any of them as a state witness since it is required that such should be not the most guilty. The Rules do not disqualify an accused sought to be discharged as witness for the state merely on the ground that he has committed a falsification himself, or that he had actually committed the crime charged. The Rules say that it is necessary that the said defendant does not appear to be the 'most guilty,' from which the conclusion follows that the guilt of an accused of the crime charged is no reason why he may not be excluded as witness for the State. As a matter of fact, the candid admission of an accused, of his participation in a crime, is a guaranty that if he will testify in court he will testify truthfully; so that even if an accused actually participated in the offense charged in the information, he may still be made a witness. (Lugtu vs. CA)

Granted: if the court grants the application, it amounts to an acquittal as provided under Section 18, to wit: Section 18. Discharge of accused operates as acquittal. — The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the discharge. (10a) Likewise, the affidavits and evidence provided forms part of the records of the case.

Denied: if denied, the affidavits become inadmissible. Witness Protection Program: to be qualified under the Witness Protection Program, the above requisites (a to e) have to be complied with. However, the witness must not be included in the Information.

Substantially corroborated in its material points: does not mean that the testimony of the state witness is corroborative. It must be an evidence in chief or he must be a principal witness but his testimony must be consistent with other evidence. The rule is that the testimony of a self-confessed accomplice or co-conspirator imputing the blame to or implicating his co-accused cannot, by itself and without corroboration, be regarded as proof of a moral certainty that the latter committed the crime. It must be substantially corroborated in its material

points by unimpeachable testimony and strong circumstances, and must be to such an extent that its trustworthiness becomes manifest. (People vs. Anabe) The corroborative evidence required by the Rules does not have to consist of the very same evidence as will be testified on by the proposed state witnesses.

(Salvanera vs. People)



E.

MISTAKE IN CHARGING THE PROPER OFFENSE

Section 19. When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (11a) Section 20. Appointment of acting prosecutor. — When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137 or for any other reasons, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. (12a) Section 21. Exclusion of the public. — The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

motion of the accused, exclude the public from the trial, except court personnel and the counsel of the parties. (13a)

unless the enforcement of the civil liability by a separate civil action has been reserved or waived.

Section 22. Consolidation of trials of related offenses. — Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the discretion of the court. (14a)

In case the judgment is of acquittal, it shall state whether the evidence of the prosecution (1) absolutely failed to prove the guilt of the accused or (2) merely failed to prove his guilt beyond reasonable doubt.

F.

DEMURRER TO EVIDENCE

Section 23. Demurrer to evidence. — 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 (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a) The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n)

In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (2a) B.

JUDGMENT FOR TWO OR MORE OFFENSES

Section 3. Judgment for two or more offenses. — When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. (3a) Section 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (4a) Section 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter. (5a) C.

PROMULGATION, MODIFICATION AND ENTRY OF JUDGMENT

See Rule 33 discussions on page 44. G.

REOPENING VS. NEW TRIAL

Section 24. Reopening. — At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within thirty (30) days from the order grating it. (n)

Summary Procedure: a motion to reopen the case is a prohibited pleading. XII. RULE 120: JUDGMENT Section 1. Judgment definition and form. — Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. (1a) A.

JUDGMENT FOR CONVICTION VS. ACQUITTAL

Section 2. Contents of the judgment. — If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any,



Section 6. Promulgation of judgment. — The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside of the province or city, the judgment may be promulgated by the clerk of court. If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court. The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (6a)

PROMULGATION: in criminal cases, is the equivalent of “entry of judgment”. This is one of the instances when the accused is required to appear in court (aside from arraignment and for identification).

Presence of the Accused: An accused is required to be present before the trial court at the promulgation of the judgment in a criminal case. However, if the accused fails to appear, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel. 1.

2.

If his absence is NOT for justifiable reasons: a. he shall lose the remedies available (i.e., appeal, new trial or reconsideration) and b. the court shall order his arrest If his reasons are found to be justifiable: he shall be allowed to avail of the remedies within 15 days from notice.

Accused escaped jail or jumps bail; waiver of right to appeal: Once an accused escapes from prison or confinement or jumps bail or flees to a foreign country, he loses his standing in court and unless he surrenders or submits to the jurisdiction of the court he is deemed to have waived any right to seek relief from the court. By escaping prison, accused-appellant impliedly waived his right to appeal. In People v. Ang Gioc, the Court enunciated that: There are certain fundamental rights which cannot be waived even by the accused himself, but the right of appeal is not one of them. This right is granted solely for the benefit of the accused. He may avail of it or not, as he pleases. He may waive it either expressly or by implication. When the accused flees after the case has been submitted to the court for decision, he will be deemed to have waived his right to appeal from the judgment rendered against him x x. The accused cannot be accorded the right to appeal unless he voluntarily submits to the jurisdiction of the court or is otherwise arrested within 15 days from notice of the judgment against him.19 While at large, he cannot seek relief from the court, as he is deemed to have waived the appeal.20 Thus, having escaped from prison or confinement, he loses his standing in court; and unless he surrenders or submits to its jurisdiction, he is deemed to have waived any right to seek relief from the court.

Section 7. Modification of judgment. — A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a) Section 8. Entry of judgment. — After a judgment has become final, it shall be entered in accordance with Rule 36. (8) Section 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule. — Nothing in this Rule shall affect any existing provisions in the laws governing suspension of sentence, probation or parole. (9a) XIII.

RULE 121: NEW TRIAL OR RECONSIDERATION

Section 1. New trial or reconsideration. — At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a)



Section 2. Grounds for a new trial. — The court shall grant a new trial on any of the following grounds: (a) The errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) The new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. (2a) NEW TRIAL IN CIVIL VS. CRIMINAL CASES; GROUNDS: CRIMINAL CASES The errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial The new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment

CIVIL CASES FAME, which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result

Section 3. Ground for reconsideration. — The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings. (3a) RECONSIDERATION IN CIVIL VS. CRIMINAL CASES; GROUNDS: Motion for reconsideration in criminal cases Errors of law or fact in the judgment, which requires no further proceedings.

Motion for reconsideration in civil cases the damages awarded are excessive the evidence is insufficient to justify the decision or final order the decision or final order is contrary to law

Section 4. Form of motion and notice to the prosecutor. — The motion for a new trial or reconsideration shall be in writing and shall state the grounds on which it is based. If based on a newly-discovered evidence, the motion must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. Notice of the motion for new trial or reconsideration shall be given to the prosecutor. (4a) Section 5. Hearing on motion. — Where a motion for a new trial calls for resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise. (5a) Section 6. Effects of granting a new trial or reconsideration. — The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. (b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall stand and the newlydiscovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record.

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

(c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. (6a)

imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. (AM No. 00-5-

03-SC) 1.

XIV. RULE 122 to 125: APPEAL RULE 122: Appeal Section 1. Who may appeal. — Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. (2a)

2.

Death Penalty – the CA shall render judgment but REFRAIN FROM MAKING AN ENTRY of judgment and forthwith certify the case and elevate its entire record to the SC for review; Life Imprisonment or Reclusion Perpetua – it shall render and enter judgment and appeal to the SC may be done by notice of appeal.

Petition for Review: for cases decided by the RTC in the exercise of its appellate jurisdiction, similar to Rule 42 in civil cases.

Section 2. Where to appeal. — The appeal may be taken as follows: (a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court; (b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and (c) To the Supreme Court, in cases decided by the Court of Appeals. (1a) Section 3. How appeal taken. — (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, life imprisonment or where a lesser penalty is imposed for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more, serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule. (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule.

Notice of Appeal: 1. 2.

3.

Cases decided by the MTC to the RTC; Cases decided by the RTC in its original jurisdiction where the penalty imposed is reclusion perpetua, life imprisonment or a lesser penalty - to the CA. Cases decided by the CA when the penalty imposed is life imprisonment or reclusion perpetua or lesser penalty - to the SC.

Death Penalty: no notice of appeal is necessary in cases where the RTC imposed the death penalty. The CA shall automatically review the judgment. From the CA: Rule 124, Section 13. Certification or appeal of case to the Supreme Court — (a) Whenever the Court of Appeals finds that the penalty of death should be imposed, the court shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review. (b) Where the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed, and the accused appeals, the appeal should be included in the case certified for review to the Supreme Court. (c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment



Petition for Review on (Appeal by) Certiorari: all appeals to the SC shall be by appeal by certiorari under Rule 45, except when the CA finds that the penalty imposed should be death penalty (for automatic review), reclusion perpetua or life imprisonment (notice of appeal).

Appeal throws the whole case open for review: the unique nature of an appeal in a criminal case: the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned. (People vs. Morales) Review of SC of facts: While, generally, factual findings of the trial court are accorded respect by this Court, the Court may look into such factual matters when the trial court has overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which can affect the result of the case. (Quidet vs. People) Automatic Review by the Supreme Court: is applicable only when the Court of Appeals sustains the penalty of reclusion perpetua, death or life imprisonment handed down by the RTC. Thus, upon promulgation of the RTC’s judgment, there is no automatic review yet to the CA, a notice of appeal must be filed. Error in designating the appellate court: is not fatal to the appeal. However, the correction must be made within the 15 day reglementary period.

Probation: generally, perfection of an appeal from the judgment or conviction bars the grant of probation. EXCEPT: when the purpose of the appeal is to reduce the penalty to within the probational limit, such as: 1. When the appeal is merely intended for the correction of the penalty imposed by the lower court, which when corrected would entitle the accused to apply for probation; and 2. When the appeal is merely intended to review the crime for which the accused was convicted and that the accused should only be liable to the lesser offense which is necessarily included in the crime for which he was originally convicted and the proper penalty imposable is within the probationable period. Notice of appeal not approved; Remedy: is certiorari under Rule 65 and not appeal from the denial of the notice of appeal. The disallowance of the notice of appeal signifies the disallowance of the appeal itself. A petition for review under Rule 45 of the Rules of Court is a mode of appeal of a lower court’s decision or final order direct to the Supreme Court. However, the questioned Order denying her notice of appeal is not a decision or final order from which an appeal may be taken. The Rules of Court specifically provides that no appeal shall be taken from an order disallowing or dismissing an appeal. Rather, the aggrieved party can elevate the matter through a special civil action under Rule 65. (Macapagal vs. People) Section 4. Publication of notice of appeal. — If personal service of the copy of the notice of appeal can not be made upon the adverse party or his counsel, service may be done by registered mail or by substituted service pursuant to sections 7 and 8 of Rule 13. (4a) Section 5. Waiver of notice. — The appellee may waive his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. (5a)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 6. When appeal to be taken. — An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon the accused or his counsel at which time the balance of the period begins to run. (6a)

the record has been forwarded by the clerk of court to the proper appellate court as provided in section 8, in which case the judgment shall become final. The Regional Trial Court may also, in its discretion, allow the appellant from the judgment of a Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court to withdraw his appeal, provided a motion to that effect is filed before rendition of the judgment in the case on appeal, in which case the judgment of the court of origin shall become final and the case shall be remanded to the latter court for execution of the judgment. (12a)

Section 7. Transcribing and filing notes of stenographic reporter upon appeal. — When notice of appeal is filed by the accused, the trial court shall direct the stenographic reporter to transcribe his notes of the proceedings. When filed by the People of the Philippines, the trial court shall direct the stenographic reporter to transcribe such portion of his notes of the proceedings as the court, upon motion, shall specify in writing. The stenographic reporter shall certify to the correctness of the notes and the transcript thereof, which shall consist of the original and four copies, and shall file the original and four copies with the clerk without unnecessary delay.

Section 13. Appointment of counsel de oficio for accused on appeal. — It shall be the duty of the clerk of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry. (13a) RULE 123: Procedure in the Municipal Trial Courts

If death penalty is imposed, the stenographic reporter shall, within thirty (30) days from promulgation of the sentence, file with the clerk original and four copies of the duly certified transcript of his notes of the proceedings. No extension of time for filing of said transcript of stenographic notes shall be granted except by the Supreme Court and only upon justifiable grounds. (7a) Section 8. Transmission of papers to appellate court upon appeal. — Within five (5) days from the filing of the notice of appeal, the clerk of the court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the complete record of the case, together with said notice. The original and three copies of the transcript of stenographic notes, together with the records, shall also be transmitted to the clerk of the appellate court without undue delay. The other copy of the transcript shall remain in the lower court. (8a) Section 9. Appeal to the Regional Trial Courts. — (a) Within five (5) days from perfection of the appeal, the clerk of court shall transmit the original record to the appropriate Regional Trial Court. (b) Upon receipt of the complete record of the case, transcripts and exhibits, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (c) Within fifteen (15) days from receipt of the said notice, the parties may submit memoranda or briefs, or may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed. (9a) Section 10. Transmission of records in case of death penalty. – In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Court of Appeals for automatic review and judgment within twenty days but not earlier than fifteen days from the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten days after the filing thereof by the stenographic reporter. Section 11. Effect of appeal by any of several accused. — (a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter; (b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. (c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. (11a) Section 12. Withdrawal of appeal. — Notwithstanding the perfection of the appeal, the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court, as the case may be, may allow the appellant to withdraw his appeal before



Section 1. Uniform Procedure. — The procedure to be observed in the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall be the same as in the Regional Trial Courts, except where a particular provision applies only to either of said courts and in criminal cases governed by the Revised Rule on Summary Procedure. (1a) RULE 124: Procedure in the Court of Appeals Section 1. Title of the case. — In all criminal cases appealed to the Court of Appeals, the party appealing the case shall be called the "appellant" and the adverse party the "appellee," but the title of the case shall remain as it was in the court of origin. (1a) Section 2. Appointment of counsel de oficio for the accused. — If it appears from the record of the case as transmitted that (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal himself, the clerk of court of the Court of Appeals shall designate a counsel de oficio. An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within ten (10) days from receipt of the notice to file brief and he establishes his right thereto. (2a) Section 3. When brief for appellant to be filed. — Within thirty (30) days from receipt by the appellant or his counsel of the notice from the clerk of court of the Court of Appeals that the evidence, oral and documentary, is already attached to the record, the appellant shall file seven (7) copies of his brief with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellee. (3a) Section 4. When brief for appellee to be filed; reply brief of the appellant. — Within thirty (30) days from the receipt of the brief of the appellant, the appellee shall file seven (7) copies of the brief of the appellee with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellant. Within twenty (20) days from receipt of the brief of the appellee, the appellant may file a reply brief traversing matters raised in the former but not covered in the brief of the appellant. (4a) Section 5. Extension of time for filing briefs. — Extension of time for the filing of briefs will not be allowed except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended. (5a) Section 6. Form of briefs. — Briefs shall either be printed, encoded or typewritten in double space on the legal size good quality unglazed paper, 330 mm. in length by 216 mm. in width. (6a)

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

Section 7. Contents of brief. — The briefs in criminal cases shall have the same contents as provided in sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of appellant. (7a) Section 8. Dismissal of appeal for abandonment or failure to prosecute. — The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio. The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal. (8a) Section 9. Prompt disposition of appeals. — Appeals of accused who are under detention shall be given precedence in their disposition over other appeals. The Court of Appeals shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. The accused need not be present in court during the hearing of the appeal. (9a) Section 10. Judgment not to be reversed or modified except for substantial error. — No judgment shall be reversed or modified unless the Court of Appeals, after an examination of the record and of the evidence adduced by the parties, is of the opinion that error was committed which injuriously affected the substantial rights of the appellant. (10a) Section 11. Scope of judgment. — The Court of Appeals may reverse, affirm, or modify the judgment and increase or reduce the penalty imposed by the trial court, remand the case to the Regional Trial Court for new trial or retrial, or dismiss the case. (11a) Section 12. Power to receive evidence — The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases (a) falling within its original jurisdiction, (b) involving claims for damages arising from provisional remedies, or (c) where the court grants a new trial based only on the ground of newly-discovered evidence. (12a)

evidence as provided in section 12 of this Rule or refer the trial to the court of origin. (15a) Section 16. Reconsideration. — A motion for reconsideration shall be filed within fifteen (15) days after from notice of the decision or final order of the Court of Appeals, with copies served upon the adverse party, setting forth the grounds in support thereof. The mittimus shall be stayed during the pendency of the motion for reconsideration. No party shall be allowed a second motion for reconsideration of a judgment or final order. (16a) Section 17. Judgment transmitted and filed in trial court. — When the entry of judgment of the Court of Appeals is issued, a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of the court from which the appeal was taken. (17a) Section 18. Application of certain rules in civil to criminal cases. — The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and appealed civil cases shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provisions of this Rule. (18a) RULE 125: Procedure in the Supreme Court Section 1. Uniform procedure. — Unless otherwise provided by the Constitution or by law, the procedure in the Supreme Court in original and in appealed cases shall be the same as in the Court of Appeals. (1a) Section 2. Review of decisions of the Court of Appeals. — The procedure for the review by the Supreme Court of decisions in criminal cases rendered by the Court of Appeals shall be the same as in civil cases. (2a) Section 3. Decision if opinion is equally divided. — When the Supreme Court en banc is equally divided in opinion or the necessary majority cannot be had on whether to acquit the appellant, the case shall again be deliberated upon and if no decision is reached after redeliberation, the judgment of conviction of the lower court shall be reversed and the accused acquitted. (3a) XV. RULE 126: SEARCH AND SEIZURE A.

Section 13. Certification or appeal of case to the Supreme Court — (a) Whenever the Court of Appeals finds that the penalty of death should be imposed, the court shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review. (b) Where the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed, and the accused appeals, the appeal should be included in the case certified for review to the Supreme Court. (c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. (AM No. 00-5-

03-SC) Section 14. Motion for new trial. — At any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting the appellant becomes final, the latter may move for a new trial on the ground of newly-discovered evidence material to his defense. The motion shall conform with the provisions of section 4, Rule 121. (14a) Section 15. Where new trial conducted. — When a new trial is granted, the Court of Appeals may conduct the hearing and receive



CONSTITUTIONAL PROVISION ON SEARCHES AND SEIZURE

Article III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. B.

WARRANT OF ARREST VS. SEARCH WARRANT:

Warrant of Arrest Search Warrant Preliminary investigation leads to its issuance or non-issuance Both rendered by the judge Arrest is the taking of a person into A search warrant is an order in custody in order that he may be writing issued in the name of the bound to answer for the commission People of the Philippines, signed by of an offense a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. For the purpose of taking a person For the purpose of taking personal into the custody of the law property* into the custody of the law

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

The judge is required to conduct an investigation or examination but the court may dispense with the personal examination and may simply rely on the report of the fiscal An arrest may be made on any day and at any time of the day or night Has an immortal life; until and unless implemented, it continues to live as long as the person is identifiable, you can already implement the warrant lawfully.

The court must always conduct searching questions upon the complainant and his witnesses

Should be executed only on daytime unless otherwise stated in the warrant itself** Only good for 10 days; whether implemented or not, the search warrant dies on the 11th day*** The things to be seized and the person to be searched must be specifically identified. Those outside the identification are beyond the search.

* The personal property here is not any kind of property. Section 3 of Rule 126 provides: Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. (2a)

Warrant says “unidentified amount of shabu”: warrant is valid. The officer cannot be expected to know the exact amount of the shabu to be searched and seized. ** Section 9. Time of making search. — Section 9. Time of making search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (8) *** Section 10. Validity of search warrant. — Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void. (9a) Section 1. Search warrant defined. — A search warrant is an order (1) in writing (2) issued in the name of the People of the Philippines, (3) signed by a judge and (4) directed to a peace officer, (5) commanding him to search for personal property described therein and bring it before the court. (1) Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the following: a) Any court within whose territorial jurisdiction a crime was committed. b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. (n)

Venue is NOT Jurisdictional in Application for Search Warrant: an application for a search warrant is a “special criminal process,” rather than a criminal action. It would thus categorize what is only a special criminal process, the power to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated competence. It ignores the fact that the



requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action.

(Pilipinas Shell vs. Romars International Gases Corporation) Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (3a) Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a) Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a) Section 7. Right to break door or window to effect search. — The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (6) Section 8. Search of house, room, or premise to be made in presence of two witnesses. — No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (7a) Section 11. Receipt for the property seized. — The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a) Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. — (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.(11a) Republic Act No. 9165; Requirement of Inventory; Chain of Custody Rule:

Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.

3. 4. 5. 6. 7.

Search of a moving vehicle; Customs search; Stop and Frisk Doctrine; Waiver or Consented Search. Exigent and Emergency Circumstances

D.

QUASHAL OF WARRANT

Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequent filed in another court, the motion shall be resolved by the latter court. (n) GROUND: Property to be searched or seized is not particularly described. XVI. RULE 127: PROVISIONAL REMEDIES

As recently highlighted in People v. Cortez and People v. Lazaro, Jr., RA 9165 and its subsequent Implementing Rules and Regulations (IRR) do not require strict compliance as to the chain of custody rule. The arrest of an accused will not be invalidated and the items seized from him rendered inadmissible on the sole ground of non-compliance with Sec. 21, Article II of RA 9165. We have emphasized that what is essential is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. Briefly stated, non-compliance with the procedural requirements under RA 9165 and its IRR relative to the custody, photographing, and drug-testing of the apprehended persons, is not a serious flaw that can render void the seizures and custody of drugs in a buy-bust operation. (People vs. Cardenas) C.

WARRANTLESS SEARCH

1.

Plain View Doctrine: 3 requirements: a. Valid intrusion; b. Inadvertent discovery; c. Immediately apparent.

2.

Search in connection with a lawful arrest: Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (12a)

Valid if arrest and search are contemporaneous: while the rule is the arrest precede the search and in no way will the search precede the arrest, the court, in some instances, will allow if the search and the arrest is contemporaneous.

Section 1. Availability of provisional remedies. — The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. (1a) 1. 2. 3. 4.

Support Pendente Lite; Attachment – e.g., estafa; Preliminary Injunction; Receivership

Replevin: can only be applied for at any time before an answer. A criminal case does not have a responsive pleading. As such, the replevin cannot be applied. Section 2. Attachment. — When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (a) When the accused is about to abscond from the Philippines; (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and (d) When the accused resides outside the Philippines. (2a)

Traffic violation punishable by a fine only, no arrest: When the accused was flagged down for a violation of a municipal ordinance requiring the wearing of a helmet, he was not under arrest. Accordingly, the warrantless search conducted pursuant to the same is not lawful. Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an offense. This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into custody, the former may be deemed to have arrested the motorist. (Luz vs.

People)



Cesar Nickolai F. Soriano Jr. Arellano University School of Law 2011-0303 REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES