Benchbook for Trial Court Judges

the benchbook compiled by: raj

INTRODUCTION I. JUDICIAL POWER AND THE ROLE OF THE JUDICIARY1[1] The Philippine Constitution vests judicial power in one Supreme Court and in such lower courts as may be established by law.2[2] Judicial power is described by the same section of the Constitution as follows: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

The use of the word 'includes' connotes that the provision is not an exhaustive enumeration of what is comprised in judicial power. The use of the word 'duty' emphasizes the obligation of the courts of justice to exercise the judicial power in actual controversies. The inclusion of the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government is in accord with the role of the judiciary as the last bulwark of the constitutional rights and liberties of the people. However, it does dispense with the doctrine that purely political questions are beyond the pale of judicial review. The importance of the Judiciary in Philippine society is succinctly spelled out in the Preamble of the Code of Judicial Conduct:3[3] An honorable, competent and independent judiciary exists to administer justice and thus promote the unity of the country, the stability of government, and the well-being of the people.

This is an improvement of Canon 2 of the Canons of Judicial Ethics which provided that "The courts exist to promote justice; and thus to aid in securing the contentment and happiness of the people."4[4] The role of the Judiciary has been depicted in florid language Nowhen as now is the duty of the Supreme Court in upholding the moral tenets of our Constitution and laws more imperative. In no idea is the moral sense more inherent and manifest than in justice. By the nature of their social function, the organs of judicial power are placed in the dominant position of the highest moral leadership. Never was the need of such moral leadership — inspired, dynamic, militant — felt with more acuteness than in the present stage of our travel toward national destiny. Wickedness and lack of scruples are on a rampage in every social strata, private and official. Flagrant violations of the fundamental law are committed with callous nonchalance, while robbery, banditry and gangsterism are practiced in broad daylight. Fundamental rights and privileges, liberties and immunities, whether private or official, are trampled down with satrapic insolence, while murders and wanton attacks against honor are perpetrated as exciting sport; graft, corruption, and absolute lack of principles in many high places; black market, gambling, shady negotiations, and exploitation of the innocent and the weak in some other spheres.

The ultimate hope to escape collapse must be pinned on the judiciary for the latter to fulfill with unrelentless straight-forwardness the duties of moral leadership entrusted to it by the Constitution. The judiciary should be the mighty euphroe that must link the loosened or severed moral cords and strengthen the bonds which will keep society from disintegrating.5[5]

Twenty-one years later, the Supreme Court came up with a more pragmatic description linking the judiciary to the rule of law, thus: Law stands for order, for the peaceful and systematic adjustment of frictions and conflicts 1 2[2]

[1]

Excerpted from the draft on 'Judicial Ethics' by retired Court of Appeals Justice Hector L. Hofileña. Constitution, Art. VIII, Sec. 1.

3[3]

Promulgated by the Supreme Court of the Philippines on September 6, 1989.

4

[4]

5

[5]

Administrative Order No. 162, Department of Justice, August 1, 1948. Iloilo Provincial Warden, 78 Phil. 599 [1947], dissenting opinion of Justice Gregorio Perfecto.

unavoidable in a modern society with its complexities and clashing interests. The instrumentality for such balancing or harmonization is the judiciary and other agencies exercising quasi-judicial powers. When judicial or quasi-judicial tribunals speak, what they decree must be obeyed, what they ordain must be followed. A party dissatisfied may ask for a reconsideration and, if denied, may go on to a higher tribunal. As long as the orders stand unmodified, however, they must, even if susceptible to well-founded doubts on jurisdictional grounds, be faithfully complied with. Such is the way of the law. So it has been in the past. So it should continue to be. If it were otherwise, the intellect no longer holds sway, the dictates of moderation are ignored, and passion takes over.6[6]

In administering justice, the judiciary decides controversies between the party litigants. At the same time, it also contributes to the establishment of the Rule of Law without which there will be chaos in the community. What is more significant, however, is that the judiciary achieves such goal by relying on the moral force generated by the quality of its work in administering justice. It has been pointed out that: Among the three powers of government, the judiciary is in the material sense the weakest. Although its function in society is as noble and important as the ones entrusted to the legislative and executive powers, and there is none loftier that our mind may conceive or to which the most ambitious heart may aspire, it needs the active and positive help of other agencies to make it effective. Congress must provide for the adequate budget, and the executive power the necessary force to make effective the orders and decisions of tribunals.

To compensate for that comparative physical weakness of the judicial power, it is necessary that judges and courts should acquire the unbounded moral force which springs from the general faith and confidence of government and people alike. That moral force, although intangible, immeasurable and imponderable, is as effective as any cosmic force, if not more. We hold as an axiom that spiritual energy is stronger than atomic energy, the mighty basic force of material universe. But to obtain and retain public faith and confidence, it is necessary that courts and judges should show by their acts that they are actually entitled to such faith and confidence. Recalcitrant insubordination and indiscipline are not the means. On the contrary, they will only provoke public suspicion and distrust, if not popular wrath and condemnation.7[7]

To gain and maintain such confidence of the people, the judiciary must, in the words of the Code of Judicial Conduct, be “honorable, competent and independent.” Having efficient judges is one of the basic means to achieve this end, and this Benchbook for Trial Court Judges aims to help judges attain that necessary efficiency. II. THE BENCHBOOK AS A TOOL FOR JUDGES Proceedings before courts can take different forms that are governed by different rules which cannot be found in any single law, or rule, but must often be taken from pronouncements of the Supreme Court or inferred from a process of reading rules together. While rules of procedure may appear to be straightforward and uncomplicated, jurisprudence uncovers nuances and introduces subtleties that are less obvious. Likewise, for Judges to dispense true and meaningful justice, they must have the ability to decide when it is proper to adhere to precedent, and when it would best serve the interests of justice to innovate. This is a balancing act that will defy even the most learned of jurists. Judges require a handy reminder of which rules are inflexible, and what principles provide the foundation for flexible rules. The printed Benchbook was born from the need for a single source of direct but complete answers to the most frequently raised questions. Its online counterpart promises to bring that utility to Judges across the Philippines. Experts in the relevant fields were tapped to compile the information in the Benchbook. They were assisted by personnel from the Supreme Court and the International Development Law Institute. Retired Supreme Court Justice Ameurfina A. Melencio Herrera, current Chancellor of the Philippine Judicial Academy, remarks that with the Benchbook, 'There should be less reason now for uncertainty in matters 6

7

[6]

Philippine Association of Free Labor Unions (PAFLU) v. Salvador, G. R. No. L-29471, September 28, 1968, 25 SCRA 393. [7] Talabon v. The Provincial Warden, 78 Phil. 599 [1947].

pertaining to remedial law principally, and, we hope, less reason to find judges remiss in their duty of applying the law correctly, intelligently and judiciously.' Court Administrator Alfredo L. Benipayo credits the Benchbook with 'providing a standard reference work that will tirelessly remind our judges of both the immutable fundamentals of the law and the ceaseless evolution of legal thought and jurisprudence.' The Benchbook thus 'makes it that much easier to strike that golden middle way between stability and dynamism.'

The Benchbook, however, is not the single solution to a Judge’s every problem. While the Benchbook is intended to enhance the quality of performance of Judges, constant learning by the Judge must complement its use. The Benchbook is thus nothing less, and nothing more, than a tool to help Judges dispense justice more efficiently, but the maximization of its potentials will depend on the skills of the Judge involved.

OUTLINE OF JURISDICTION

1. SUPREME COURT

A. Original

1. Exclusive

Petitions for issuance of writs of certiorari, prohibition and mandamus against the following:

1.1 Court of Appeals

1.2 Commission on Elections

1.3 Commission on Audit

1.4 Sandiganbayan

2. Concurrent

2.1 with Court of Appeals

Petitions for issuance of writs of certiorari, prohibition and mandamus against the following:

2.1.1 National Labor Relations Commission under the Labor Code (Section 9 of B. P. Blg. 129 as amended by RA 7902, St. Martin Funeral Homes v. National Labor Relations Commission, G. R. No. 130866, September 16, 1998, 295 SCRA 494)

Note: However, the petitions should be filed with the Court of Appeals; otherwise, they shall be dismissed. (A. M. No. 99-2-01-SC)

2.1.2 Civil Service Commission (RA 7902)

2.1.3 Central Board of Assessment Appeals (PD 464; Sec. 9 of BP 129 as amended by RA 7902)

2.1.4 Court of Tax Appeals and Quasi-Judicial Agencies (Rule 43, 1997 Rules of Civil Procedure)

2.1.5 Regional Trial Courts and lower courts

2.2 with the Court of Appeals and Regional Trial Courts

2.2.1 Petitions for habeas corpus and quo warranto

2.2.2 Petitions for issuance of writs of certiorari, prohibition and mandamus against the lower courts or bodies (Sec. 9[1] and Sec. 21 [1] of BP 129; Vergara v. Suelto, No. L-74766, December 21, 1987, 156 SCRA 763 [1987])

2.3 with Regional Trial Courts

Actions affecting ambassadors and other public ministers and consuls (Sec. 5[1] Article VIII, Constitution, Sec. 21[2] of BP 129, Schneckenburger v. Moran, 63 Phil 249 [1936])

B. Appellate

1. Notice of Appeal

1.1 From Regional Trial Courts or the Sandiganbayan in all criminal cases involving offenses

for which the penalty imposed is reclusion perpetua or life imprisonment, and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion (Sec. 17 of Judiciary Act of 1948: Sec. 9[3] of BP 129; Sec. 5[2-d], Article VIII, Constitution; Sec. 3[c] of Rule 122; Sec. 5 of RA 8249) Exception: People v. Plateros, No. L-37162, May 30, 1978, 83 SCRA 401

1.2 Automatic review in criminal cases where the death penalty is imposed by the Regional Trial Court or the Sandiganbayan (RA 7659 and 8249; Secs. 3 [d] and10 of Rule 122)

2. Petition for Review on Certiorari

2.1 Appeals from the Court of Appeals (Sec. 17 of Judiciary Act of 1948 as amended by RA 5440; Sec. 5[2] Article VIII, Constitution; Rule 45 of 1997 Rules of Civil Procedure)

2.2 Appeals from the Sandiganbayan on pure questions of law, except cases where the penalty imposed is reclusion perpetua, life imprisonment or death (Sec. 7 of PD 1606 as amended by RA 8249; Nuñez v. Sandiganbayan, Nos. L-50581-50617, January 20, 1982, 111 SCRA 433; Rule 45 Ibid.)

2.3 Appeals from Regional Trial Courts exercising original jurisdiction in the following cases:

2.3.1 If no question of fact is involved and the case involves-

a) Constitutionality or validity of treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation

b) Legality of tax, impost, assessments, or toll, or penalty in relation thereto

c) Jurisdiction of lower court

2.3.2 All cases in which only errors or questions of law are involved (Sec. 5[2-a,b,c, and e], Article VIII, Constitution, Sec. 9[3] of BP 129); Rule 45 Ibid; Sec. 2[c] of Rule 41; Sec. 3[e] of Rule 122)

3. Special Civil Action of Certiorari filed within thirty days against the following:

3.1 Commission on Elections (Sec. 7, Article IX-A Constitution; Aratuc v. Comelec, No. L49705-09, Feb. 8, 1979, 88 SCRA 251)

3.2 Commission on Audit (Ibid. 1987 Constitution) (Rule 64, 1997 Rules of Civil Procedure) 2. Court of Appeals

A. Original

1. Exclusive

Actions for annulment of judgments of Regional Trial Courts (Sec. 9[2] of BP 129; Rule 47 of 1997 Rules of Civil Procedure)

2. Concurrent

2.1 with Supreme Court

Refer to Sec. 2.1 above under I.A. supra

2.2 with Supreme Court and Regional Trial Courts

Refer to Sec. 2.2 above under I.A. supra

B. Appellate

1. Ordinary Appeal by Notice of Appeal or Record on Appeal

1.1 Appeals from Regional Trial Courts, except those appealable to the Supreme Court under Sec. 2(3) of 1-B above.

1.2 Appeals from Regional Trial Courts on constitutional, tax, jurisdictional questions involving questions of fact which should be appealed first to the Court of Appeals (Sec. 17 subparagraph 4 of the fourth paragraph of the Judiciary Act of 1948 as amended, which was not intended to be excluded by Sec. 9[3] of BP 129)

1.3 Appeals from decisions and final orders of the Family Courts. (Sec. 14 of RA 8369)

2. Petition for Review

2.1 Appeals from the Civil Service Commission (RA 7902; Rule 43 of 1997 Rules of Civil Procedure)

2.2 Appeals from Regional Trial Courts in cases appealed from Metropolitan Trial Courts and Municipal Circuit Trial Courts, which are not a matter of right. (Sec. 22 of BP 129; Rule 42 of 1997 Rules of Civil Procedure; Sec. 3[b] of Rule 122)

2.3 Appeals from Court of Tax Appeals and quasi-judicial agencies. Among these are:

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

Central Board of Assessment Appeals Securities and Exchange Commission 3. Office of the President 4. Land Registration Authority 5. Social Security Commission 6. Civil Aeronautics Board 7. Intellectual Property Office (formerly the Bureau of Patents, Trademark and Technology Transfer) 8. National Electrification Administration 9. Energy Regulatory Board 10. National Telecommunications Commission 11. Department of Agrarian Reform under RA 6657 12. Government Service Insurance System 13. Employees Compensation Commission 14. Agricultural Inventions Board 15. Insurance Commission 16. Philippine Atomic Energy Commission 17. Board of Investments 18. Construction Industry Arbitration Commission 19. Voluntary arbitrators authorized by law. (Rule 43 of 1997 Rules of Civil Procedure) 1. 2.

2.4 Appeals from the National Commission on Indigenous Peoples (NCIP). (Sec. 67 of RA 8371)

2.5 Appeals from the Office of the Ombudsman in administrative disciplinary cases. (A. M. No. 99-2-02-SC, Fabian v. Desierto, G.R. No. 129742, September 16, 1998, 295 SCRA 470)

3. SANDIGANBAYAN

A. Original

1. Exclusive

1.1 Violation of RA 3019 (Anti-Graft), RA 1379 and Chapter II, Sec. 2, Title VII of Revised Penal Code; and other offenses committed by public officials and employees in relation to their office, and private individuals charged as co-principals, accomplices and accessories including those employed in government-owned or controlled corporations, 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.

1. Officials of the Executive branch xxx classified as Grade '27' or higher xxx specifically including xxx 2. 2. Members of Congress xxx 3. 3. Members of Judiciary xxx 4. 4. Members of Constitutional Commissions xxx 5. 5. All other national and local officials classified as grade '27' and higher

In cases where none of the accused are occupying the above positions, the original jurisdiction shall be vested in the proper regional trial court or metropolitan trial court, etc., as the case may be, pursuant to their respective jurisdictions. (Section 2, RA 7975, as amended by RA 8249)

In cases where there is no specific allegation of facts showing that the offense committed in relation to the public office of the accused, the original jurisdiction shall also be vested in the proper regional trial court or metropolitan trial court, etc., as the case may be. (Lacson v. Executive Secretary, G. R. No. 128096, January 20, 1999, 301 SCRA 298)

1.2 Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. (Sec. 2 of RA 7975 as amended by RA 8249)

2. Concurrent with Supreme Court

Petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other ancilliary writs in aid of its appellate jurisdiction, including quo warranto arising in cases falling under said Executive Order Nos. 1, 2, 14 and 14-A. (Ibid. As amended by RA 8249)

B. Appellate

Decisions and final orders of Regional Trial Courts in the exercise of their original or appellate jurisdiction under PD 1606, as amended, shall be appealable to the Sandiganbayan in the manner provided by Rule 122 of the Rules of Court. (Sec. 5 of RA 8249) 4. REGIONAL TRIAL COURTS

A. Original

1. Civil

1.1 Exclusive

1.1.1 Subject of action not capable of pecuniary estimation;

1.1.2 Actions involving title or possession of real property or interest therein where the assessed value exceeds Php 20,000.00 or in Metro Manila Php 50,000.00 except forcible entry and unlawful detainer;

1.1.3 Actions in admiralty and maritime jurisdiction where demand or claim exceeds Php100,000.00; or in Metro Manila Php 200,000.00;

1.1.4 Matters of probate, testate, or intestate, where gross value of estate exceeds Php100,000.00 or in Metro Manila P200,000.00

1.1.5 Actions involving marriage and marital relations(now under the jurisdiction of the Family Courts);

1.1.6 Cases not within exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial function;

1.1.7 Actions and special proceedings falling within the exclusive original jurisdiction of the Juvenile and Domestic Relations Courts (now the Family Courts, Sec. V, infra) and the Court of Agrarian Relations;

1.1.8 Other cases where demand, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, or value of property in controversy exceeds Php 100,000.00 or in Metro Manila Php 200,000.00 (Sec. 19 of BP 129 as amended by RA 7691) However, if the claim for damages is the main cause of action, the amount thereof shall be considered in determining the jurisdiction of the court. (Administrative Circular No. 09-94, dated June 14, 1994)

Note: The amounts in 1.1.3, 1.1.4 and 1.1.8 were doubled as of March 20, 1999 under Sec. 5 of RA 7691; Circular No. 21-99. The original amount of Php 100, 000.00 which was increased to Php 200,000.00 will be increased to Php 300,000.00 five (5) years thereafter.

1.1.9 Additional original jurisdiction transferred under Section 5.2 of the Securities Regulation Code:

a) Devices or schemes employed by, or any acts of, the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation xxx

b) Controversies arising out of intra-corporate or partnership relations xxx

c) Controversies in the election or appointment of directors, trustees, officers or managers of such corporation, partnerships or association.

d) Petitions of corporations, partnerships or associations to be declared in a state of suspension of payments xxx (RA No. 8799 approved on July 19, 2000)

1.2 Concurrent

1.2.1 with Supreme Court

Actions affecting ambassadors and other public ministers and consuls; (Sec. 21[1] of BP 129)

1.2.2 with Supreme Court and Court of Appeals

a) Certiorari, Prohibition, and Mandamus against lower courts and bodies.

b) Habeas corpus and Quo Warranto, Sec. 9 [1] and Sec. 21 [1] of BP 129

1.2.3 with Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts

No concurrent jurisdiction: Guardianship and adoption cases are now under the exclusive original jurisdiction of Family Courts established by RA 8369 known as the 'Family Courts Act of 1997' approved on October 28, 1997. (See Sec. 5 infra.)

1.2.4 With the Insurance Commission

Claims not exceeding Php 100,000.00 (Sec. 416 of the Insurance Code (1974), PD 612). Applicable if subject of the action is not capable of pecuniary estimation; otherwise, jurisdiction is concurrent with Metropolitan Trial Courts, etc.

2. Criminal

2.1 Exclusive

Criminal cases not within the exclusive jurisdiction of any court, tribunal or body. (Sec. 20 of BP 129) These include criminal cases where the penalty provided by law exceeds six (6) years imprisonment irrespective of the fine. (RA 7691). These also include criminal cases not falling within the exclusive original jurisdiction of the Sandiganbayan where none of the accused are occupying positions corresponding to salary grade '27' and higher. (RA 7975 and 8249)

But in cases where the only penalty provided by law is a fine, the Regional Trial Courts have jurisdiction if the amount of the fine exceeds Php 4,000.

(RA 7691 as clarified by Administrative Circular No. 09-94 dated June 14, 1994)

Notes: Family Courts have exclusive original jurisdiction over 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, or when one or more of the victims is a minor at the time of the commission of the offense. (Sec. 5(a) of RA 8369)

B. Appellate All cases decided by lower courts (Metropolitan Trial Courts, etc.) in their respective territorial jurisdictions. (Sec. 22 of BP 129) 5. FAMILY COURTS

A. Exclusive and Original

1. 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, when 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. The sentence, however, shall be suspended without need of application pursuant to Presidential Decree No. 903, otherwise known as the "Child and Youth Welfare Code";

2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

3. Petitions for adoption of children and the revocation thereof;

4. 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;

5. Petitions for support and/or acknowledgment;

6. Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines";

7. 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;

8. Petitions for the constitution of the family home;

9. Cases against minors cognizable under the Dangerous Drugs Act, as amended;

10. Violations of Republic Act No. 7160, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act", as amended by Republic Act No. 7658, and

11. Cases of domestic violence against:

11.1 Women – which are acts of gender-based violence that result, or 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 of movement; and

11.2 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.

6. METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.

A. Original

1. Civil

1.1 Exclusive

1.1.1 Actions involving personal property valued at not more than Php 100,000.00 or in Metro Manila Php 200,000.00

1.1.2 Actions demanding sums of money not exceeding Php 100,000.00 or in Metro Manila, Php 200,000.00; in both cases, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, the amount of which must be specifically alleged, but the filing fees thereon shall be paid.

These include admiralty and maritime cases.

1.1.3 Actions involving title or possession of real property where the assessed value does not exceed Php 20,000.00 or in Metro Manila Php 50,000.00

1.1.4 Provisional remedies in principal actions within their jurisdiction, and in proper cases, such as preliminary attachment, preliminary injunction, appointment or receiver and delivery of personal property. (Rules 57, 58, 59 and 60)

1.1.5 Forcible entry and unlawful detainer, with jurisdiction to resolve issue of ownership to determine issue of possession.

1.1.6 Probate proceedings, testate or intestate, where gross value of estate does not exceed Php 100,000.00 or in Metro Manila Php 200,000.00 (Sec. 33 of BP 129 as amended by RA 7691).

Note: The amounts in 1.1.1, 1.1.2 and 1.1.6 were doubled as of March 20, 1999 under Sec. 5 of R.A. 1761; Circular No. 21-99. The original amount of Php 100,000.00, which was increased to Php 200,000.00 will be increased to Php 300,000.00 five (5) years thereafter.

1.1.7 Inclusion and exclusion of voters. (Sec. 138 of BP 881, Omnibus Election Code of the Philippines (1985)

1.2 Concurrent with Regional Trial Courts

None

1.3 Delegated

Cadastral and land registration cases assigned by Supreme Court where there is no controversy or opposition and in contested lots valued at not more than Php 100,000.00. (Sec. 34 of BP 129 as amended by RA 7691)

1.4 Special

Petition for habeas corpus in the absence of all Regional Trial Judges. (Sec. 35 of BP 129)

2. Criminal

2.1 Exclusive

2.1.1 All violations of city or municipal ordinances committed within their respective territorial jurisdictions;

2.1.2 All offenses punishable with imprisonment of not more than six (6) years irrespective of the fine and regardless of other imposable accessory or other penalties and the civil liability arising therefrom; provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction. (Sec. 32 of BP 129 as amended by RA 7691)

2.1.3 All offenses committed not falling within the exclusive original jurisdiction of the Sandiganbayan where none of the accused are occupying positions corresponding to salary grade '27' and higher. (As amended by RA 7675 and 8249)

2.1.4 However, in cases where the only penalty provided by law is a fine not exceeding Php 4,000, the Metropolitan Trial Courts, etc. have jurisdiction. (Administrative Circular No. 09-94 dated June 14, 1994.)

2.2 Concurrent with Fiscals and State Prosecutors

Except for Metropolitan Trial Courts in National Capital Regions, conduct preliminary investigation of offenses where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to fine. (Sec. 37 of BP 129; Sec. 1 of Rule 112, as amended). Preliminary investigation of crimes within the jurisdiction of the

Sandiganbayan is conducted by the office of the Special Prosecutor under the Ombudsman. (Sec. 11 of RA 6770)

2.3 Special

Applications for bail in the absence of all Regional Trial Judges. (Sec. 35 of BP 129)

3. Summary Procedure

3.1 Civil

3.1.1 Forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered; but attorney’s fees shall not exceed Php 20,000.00 (Revised effective November 15, 1991)

3.1.2 All other cases, except probate proceedings, where total claim does not exceed Php10,000.00

3.2 Criminal

3.2.1 Traffic violations

3.2.2 Rental law violations

3.2.3 Violations of City and municipal ordinances

3.2.4 All other cases where penalty does not exceed 6 months and/or fine of Php1,000.00

EVIDENCE Basic Principles and Selected Problems 1. WHEN EVIDENCE IS NECESSARY Evidence is the means of proving a fact. It becomes necessary to present evidence in a case when the pleadings filed present factual issues. Factual issues arise when a party specifically denies material allegations in the adverse party’s pleading. These are the issues which the judge cannot resolve without evidence being presented thereon. Thus, whether a certain thing exists or not, whether a certain act was done or not, whether a certain statement was uttered or not, are questions of fact that require evidence for their resolution. Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts.1 Other than factual issues, the case invariably presents legal issues. On the other hand, a question of law exists when the doubt or difference arises as to what the law is on a certain state of facts. Legal issues are resolved by simply applying the law or rules applicable, or interpreting the law applicable considering the facts of the case. Generally, no evidence need be presented on what the applicable law is. Everyone, including the judge, is presumed to know the law.

When the parties’ pleadings fail to tender any issue of fact, either because all the factual allegations have been admitted expressly or impliedly (as when a denial is a general denial), there is no need of conducting a trial, since there is no need of presenting evidence anymore. The case is then ripe for judicial determination, either through a judgment on the pleadings2 or by summary judgment.3

2. ADMISSIBILITY OF EVIDENCE The study of the law on Evidence involves two main problems, viz.: (1) determining whether a given piece of evidence is admissible; and (2) the proper presentation of that evidence so that the court will consider it in resolving the issues and deciding the case. Although evidence may, by itself, be admissible, the court may not admit or consider it in the resolution of the case unless the evidence was properly presented. A. Axiom of Admissibility of Evidence Evidence is admissible when it is relevant to the issues and is competent, i.e., it is not excluded by the law or the Rules of Court.4 Evidence is relevant if it tends in any reasonable degree to establish the probability or improbability of a fact in issue.5 It is of a lesser degree of reliability as evidence than material evidence. Material evidence directly proves a fact in issue. Thus, the testimony of an eyewitness to the commission of a crime is material; the evidence of motive or flight of the accused may be relevant. Evidence that is material or relevant must also be competent to be admissible. For example, although the testimony of the eyewitness may be material, it may be inadmissible if it is excluded by the marital disqualification rule.

1

Parañaque Kings Enterprises, Inc. v. Court of Appeals, G.R. No. 111538, February 26, 1997, 268 SCRA 727.

2

Rules of Court, Rule 34.

3

Ibid, Rule 35.

4

Rules of Court, Rule 128, Sec. 3.

5

Ibid.

Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. It is therefore inadvisable for a judge to ask an objecting counsel why an offered piece of evidence is irrelevant or immaterial. By his inquiry, he shows his unfamiliarity with the issues in the case. A judge is expected to be aware of the issues which he was supposed to have defined and limited in his mandatory pre-trial order. On the other hand, the grounds for objection to the competency of evidence must be specified6 and are determined by the Rules or the law.

The opposites of the three requisites for admissibility of evidence, viz, irrelevancy, immateriality or incompetency, are the general grounds for objection. The first two are valid grounds for objection without need of specification or explanation. The third ground for objection, incompetency, if offered without further explanation, is not valid for being unspecific, except when invoked in reference to the lack of qualification of a witness to answer a particular question or give a particular evidence.

B. Proper Presentation Of Evidence

Every piece of evidence, regardless of its nature, requires certain processes of presentation for its admissibility and admission. 1. Object evidence Object evidence must generally be marked (Exhibit A, B, etc. for the plaintiff; Exhibit 1, 2, 3, etc. for the defendant) either during the pre-trial or during its presentation at the trial. It must also be identified as the object evidence it is claimed to be. This requires a testimonial sponsor. For example, a forensic chemist identifies marijuana leaves as those submitted to him in the case for examination. Further, object evidence must be formally offered after the presentation of a party’s testimonial evidence.7 2. Oral evidence Oral evidence is presented through the testimony of a witness. Under the 1989 Rules on Evidence, oral evidence must be formally offered at the time the witness is called to testify.8 Objections may then be raised against the testimony of the witness. If the objection is valid, as when the witness’ testimony is barred by the hearsay rule or the opinion rule, the witness will not be allowed to testify. If the witness is otherwise allowed to testify, he shall be sworn in, either by taking an oath or making an affirmation. 9 It is essential that the proper foundation for the testimony of a witness must be laid. An ordinary witness must be shown to have personal knowledge of the facts he shall testify to; otherwise, his testimony will be hearsay, or he will be incompetent to answer the questions to be asked of him. An expert witness must be specifically qualified as such; otherwise, he cannot validly give his opinion on matters for which he may have been summoned as a witness.

However, the requirement of qualifying an expert witness may be dispensed with if:

(a) the adverse counsel stipulates on the expert’s qualification; or

6

Rules of Court, Rule 134, Sec. 36.

7

Rules of Court, Rule 132, Sec. 35.

8

9

Ibid. Rules of Court, Rule 132, Sec. 1.

(b) the court takes judicial notice of the witness’ expertise, because the judge happens to be aware thereof on account of the judge’s judicial functions. 3. Documentary evidence Documentary evidence is (1) marked; (2) identified as the document which it is claimed to be (as when the witness asserts that the document presented to him is the same contract which he claims was executed between the two parties); (3) authenticated, if a private document, by proving its due execution and genuineness; and (4) formally offered after all the proponent’s witnesses have testified.10

Rule 132, Sec. 34 provides that the court shall consider no evidence which has not been formally offered, and that the purpose for which the evidence is offered must be specified. In this connection, it has been asked whether it would be proper for the judge to disregard a witness’ direct testimony given without the prior formal offer thereof which Rule 132, Sec. 35 requires, and corollarily, whether the adverse party may be required to cross-examine that witness. In People v. Marcos,11 the Supreme Court ruled that if a witness has given unoffered direct testimony without objection from the adverse party, the latter is estopped from raising that objection which he is deemed to have waived; hence, although not formally offered, the testimony may be considered by the court.

The view can be advanced, however, that although the aforesaid testimony was not expressly formally offered, it was nonetheless formally offered, albeit impliedly and automatically, the moment each question was propounded to elicit an answer. This view is premised on two related provisions in Rule 132, Sec. 36, i.e., that 'Objection to evidence offered orally must be made immediately after the offer is made,' and that 'Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall have become reasonably apparent.' Clearly, the purpose of the express formal offer of oral evidence before the witness testifies is merely to determine, on the basis of the stated substance of the testimony and its purpose, whether the witness shall be allowed to testify. Once the witness is allowed to testify, each question propounded to elicit specific oral evidence may still be objected to as soon as a ground for objection becomes reasonably apparent. But it is fundamental that an objection to evidence can be validly raised only after an offer is made. Thus, every question asked of a witness especially on direct examination presupposes a formal offer of the answer, the oral evidence, sought to be elicited. It would seem therefore that unlike documentary and object evidence which are formally offered only after all the witnesses of a party have testified, oral evidence is offered twice: once, expressly, before the witness testifies, and again, with each question propounded to the witness. C. Formal Offer Of Evidence; Need For Statement Of The Purpose Of Evidence Evidence not formally offered will not be considered by the court in deciding the case.12

A party makes a formal offer of his evidence by stating its substance or nature and the purpose or purposes for which the evidence is offered.13 Without a formal offer of evidence, and hence without a disclosure of its purpose, it cannot be determined whether it is admissible or not. This is so because it is the intended purpose of a piece of evidence which determines what rule of evidence will apply for its admissibility. A piece of evidence may be admissible if offered for one purpose but may be inadmissible if offered for another. For example, the testimony of a witness, in a libel case, that he heard the defendant call the plaintiff a liar and a crook is certainly inadmissible for being hearsay, if offered to prove the truth of the perceived statement. However, the same testimony is perfectly admissible if offered simply to prove 1

0

Rules of Court, Rule 132, Sec. 35.

1

1

G.R. No. 91646, August 21, 1992, 212 SCRA 748.

1

2

Rules of Court, Rule 130, Sec. 34.

1

3

Ibid.

that the statement was uttered. For that purpose, the witness would be the only person qualified to testify on, and prove, what he heard defendant say. Similarly, the declaration of a dying person made without consciousness of his impending death will not qualify as a dying declaration, although it may be admissible if offered as part of the res gestae.

It must be noted that the mere marking, identification, or authentication of documentary evidence does not mean that it will be, or has been, offered as part of the evidence of a party. This was the ruling of the Supreme Court in People v. Santito, Jr.14

Annexes attached to pleadings, if not offered formally, are mere scraps of paper and should not be considered by the court,15 unless the truth of their contents has been judicially admitted.

To the general rule that the court shall not consider any evidence not formally offered, there are certain exceptions:

1. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speedy administration of justice;

2. In summary judgments under Rule 35 where the judge bases his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court;

3. Documents whose contents are taken judicial notice of by the court;

4. Documents whose contents are judicially admitted;

5. Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of cross-examination of the witnesses who testified on them during the trial, e.g., marijuana involved in a prohibited drugs prosecution.16

III. MODES OF EXCLUDING INADMISSIBLE EVIDENCE

There are two ways of excluding inadmissible evidence. One is by objection and the other is by a motion to strike out.

1

4

1

5

1

6

People v Santito, Jr., G.R. No. 91628, August 22, 1991, 201 SCRA 87.

Llaban v. Court of Appeals, G.R. No. 63226, December 20, 1991 204 SCRA 887 (Although the decision in Llaban was withdrawn by the Supreme Court on March 17, 1993, the withdrawal affected only the validity of the final disposition of that case. This did not void the soundness of the Court’s pronouncement on the treatment of annexes attached to pleadings.) People v. Napat-A, G. R. No. 84951, November 14, 1989, 179 SCRA 403; Tabuena v. Court of Appeals, G. R. No. 85423, May 6, 1991 196 SCRA 650.

A. Evidence is objected to at the time it is offered and not before: 1. Oral evidence is objected to after its express formal offer before the witness testifies. 17 When thereafter the witness is allowed to testify, objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.18

2. Documentary and object evidence are objected to upon their formal offer after the presentation of a party’s testimonial evidence.

Failure to seasonably object to offered evidence amounts to a waiver of the grounds for objection. The rules of exclusion are not self-operating. They must be properly invoked.

The grounds for objection must be specified.19 Grounds not raised are deemed waived. However, repetition of objection is unnecessary when a continuing objection is properly made.20 Objection to the purpose for which evidence is offered is not proper. B. A motion to strike out answer or testimony is proper in the following instances: 1. The witness answers prematurely.21

2. The answer is incompetent, irrelevant or improper.22

The incompetency referred to here is limited to the incompetency of the witness to answer the question posed; it does not extend to the general concept of incompetency of evidence for being excluded by law or the Rules.

3. The answer given is unresponsive.

4. The ground for objection was not apparent when the question was asked.

5. Uncompleted testimony – e.g., a witness who gave direct testimony becomes unavailable for cross-examination through no fault of the cross-examiner.

6. Unfulfilled condition in conditionally admitted testimony.

C. Objections and Ruling 1

7

Rules of Court, Rule 132, Sec. 35.

1

8

Ibid, Section 36.

1

9

Ibid.

2

0

Rules of Court, Rule 132, Section 37.

2

1

Rules of Court, Rule 132, Sec. 39.

2

2

Ibid.

Objections to evidence may be formal or substantive.

1. Formal objections are based on the defective form of the question asked. Examples:

(1) leading questions which suggest to the witness the answer desired.23

a. If counsel finds difficulty in avoiding leading questions, the judge may suggest, to expedite questions, that counsel begin his questions with the proper interrogative pronouns, such as "who", "what", "where", "why", "how", etc.

b. Leading questions are allowed of a witness who cannot be reasonably expected to be led by the examining counsel, as (a) on cross-examinations; 24 (b) when the witness is unwilling or hostile, after it has been demonstrated that the witness had shown unjustified reluctance to testify or has an adverse interest or had misled the party into calling him to the witness stand, and in either case after having been declared by the court to be indeed unwilling or hostile; 25 or (c) when the witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.26

c. Leading questions may also be asked when there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is feeble minded, or a deaf-mute.27

d. Leading questions may moreover be asked on preliminary matters, i.e., on facts not in controversy, and offered only as basis for more important testimony to follow. For example, "You are Mrs Maria Morales, wife of the plaintiff in this case?"

(2) misleading questions, which assume as true a fact not testified to by the witness ("question has no basis"), or contrary to that which he has previously stated;28

(3) double or multiple questions, which are two or more queries in one. For example, Q: "Did you see the defendant enter the plaintiff’s house, and was the plaintiff there?"

(4) vague; ambiguous; indefinite or uncertain questions - not allowed because the witness cannot understand from the form of the question just what facts are sought to be elicited.

(5) repetitious questions; or those already answered. However, on cross-examination, the cross-examiner may ask a question already answered to test the credibility of the witness. 2

3

2

4

2 2 2 2

Rules of Court, Rule 132, Sec 10. Rules of Court, Rule 132, Sec 10. 5 Ibid, Secs. 10 and 12. 6 Ibid. 7 Ibid. 8 Rules of Court, Rule 132.

(6) argumentative questions, which challenge a witness’ testimony by engaging him in an argument, e.g., Q: "Isn’t it a fact Mr Witness that nobody could possibly see all the circumstances you mentioned in a span of merely two seconds, and that either your observations are inaccurate or you are lying?"

2. Substantive objections are those based on the inadmissibility of the offered evidence, e.g.;

(1) irrelevant, immaterial

(2) best evidence rule

(3) parol evidence rule

(4) disqualification of witness

(5) privileged communication

(6) res inter alios acta

(7) hearsay

(8) opinion

(9) evidence illegally obtained

(10)private document not authenticated

The ruling by the court on an objection must be given immediately after an objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situations presented by the ruling. 29 Thus, an objection to a question asked of a witness must be at once resolved by the court by either sustaining or overruling the objection. It would be incorrect for a judge to consider the objection "submitted" or "noted". Unless the objection is resolved, the examination of the witness could not be expected to continue since, in all likelihood, the next question would depend on how the objection is resolved. If the issue raised by the objection is a particularly difficult one, it would not be improper for the judge to perhaps declare a brief recess to enable him to quickly study the matter. But certainly, the resolution must be given before the trial resumes.

2

9

Rules of Court, Rule 132, Sec. 38.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection, or one or some of them, must specify the ground or grounds relied upon.30

Judges are advised to judiciously consider the validity of the grounds for objections and carefully rule on them. A ruling that all evidence formally offered are "admitted for whatever they may be worth" will not reflect well on the judge, as it implies a hasty and ill-considered resolution of the offer and the objections. Besides, the phrase "for whatever they may be worth" is improper since it refers to the weight or credibility of the evidence; the weight of the evidence shall be considered only after the evidence shall have been admitted. Another ruling that is ludicrous and even nonsensical is "Evidence admitted subject to the objections". This is a non-ruling.

In case of an honest doubt about the admissibility of evidence, it is better policy to rule in favor of its admission. An erroneous rejection of evidence will be unfair to the offeror since the judge cannot validly consider it even if after the trial, the judge realizes his mistake. On the other hand, if the judge had erred in admitting a piece of evidence, he may simply give it little or no weight when deciding the case.

IV. LAYING THE FOUNDATIONS FOR EVIDENCE In determining the competency of an offered piece of evidence, the court must examine the requisites provided by the pertinent rule or law for its admissibility. These requisites must be established as foundations for the evidence. For example, for a declaration of an agent to be admissible against his principal, as an exception to the res inter alios acta rule,31 the declaration must be: (1) within the scope of the agent’s authority; (2) made during the existence of the agency; and (3) the agency is shown by evidence other than by such declaration.32 If the agent’s declaration is on a matter outside the scope of his agency, or is made after the agency had ceased, the agent’s declaration cannot be admitted against his principal; the general rule of res inter alios acta will apply instead.

Similarly, the foundation required by the Rules for the proper presentation of evidence must be laid, lest the evidence be rejected. For example, when the original of a document is unavailable, before secondary evidence thereof is admitted, the proponent must establish: (1) the existence or execution of the original document, and (2) the circumstances of the loss or destruction of the original, or that the original cannot be produced in court.

A. Judicial Notice

1. Mandatory and Discretionary Judicial Notice

Not everything alleged in a party’s pleading is required to be proved. Certain matters may be so well known to the court that to compel a party to prove it would be a waste of time and effort.

Under the Rules, it shall be mandatory for the court to take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationalities, the law of nations, the admiralty and maritime courts of the world and their seals, 3

0

3

1

3

Rules of Court, Rule 132, Sec. 38 Rules of Court, Rule 130, Sec. 28. 2 Ibid., Section 29.

the political Constitution and history of the Philippines, the official acts of the three departments of the Philippine government, the laws of nature, the measure of time and the geographical divisions.33 Courts may take judicial notice of matters which are: (a) of public knowledge, (b) capable of unquestionable demonstration, or (c) ought to be known to judges because of their official functions.34

2. Hearing the Parties on Discretionary Judicial Notice

During the trial, when a court is uncertain whether it may, at its discretion, take judicial notice of a certain fact or not, it may call the parties to a hearing to give them a reasonable opportunity to present information relevant to the propriety or impropriety of taking judicial notice of that fact. Certainly the so-called "hearing" is not for the purpose of adducing evidence on that fact. Similarly, even after the trial and before judgment or on appeal, the court may hear the parties on the propriety of taking judicial notice of a certain matter if such matter is decisive of a material issue in the case.35 This procedure will apprise the parties of the possibility that the judge will or will not take judicial notice of a fact, or of his resolution either way; it will thus eliminate the element of surprise and enable the parties to act accordingly. 3. Judicial Notice of Proceedings in Another Case In the adjudication of a case pending before it, a court is not authorized to take judicial notice of the contents of another case even if said case was heard by the same judge. The following are exceptions to this general rule: (1) when in the absence of any objection, with the knowledge of the opposing party, the contents of said other case are clearly referred to by title and number in a pending action and adopted or read into the record of the latter; or (2) when the original record of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case.36 Parenthetically, a court will take judicial notice of its own acts and records in the same case.37

When there is an objection, and the judge therefore cannot take judicial notice of a testimony or deposition given in another case, the interested party must present the witness to testify anew. However, if the witness is already dead or unable to testify (due to a grave cause almost amounting to death, as when the witness is old and has lost the power of speech38), his testimony or deposition given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.39

If the testimony or deposition given in another proceeding is that of a party in a case, the other party may simply offer in evidence the record of that testimony or the deposition without having to call the declarantparty to testify thereon. Certainly, a party will offer the opposing party’s declaration as evidence only if it is prejudicial to the latter’s interest. Such declaration of a party against his interest is an extra-judicial admission which may be given in evidence against him.40 B. Admissions: Judicial And Extra-Judicial An admission is a party’s acknowledgment of a fact which is against his interest. 3

3

3

4

3

Rules of Court, Rule 129, Sec. 1. Ibid, Sec. 2. 5 Rules of Court, Rule 129, Sec. 3. Tabuena v. Court of Appeals, supra, note 16; People v. Mendoza, G. R. No. 96397, November 21, 1991, 204 SCRA 288.

3

6

3

7

Republic v. Court of Appeals, G. R. No. 119288, August 18, 1997, 277 SCRA 633.

3

8

Tan v. CA, No. L-22793, May 16, 1967, 20 SCRA 54.

3

9

Rules of Court, Rule 130, Sec. 47.

4

0

Ibid, Sec. 26

A party may make an admission in any of these ways:

1. In written pleadings, motions and other papers, and stipulations filed in the case.

2. In open court, either by his testimony on the stand or by his statement or that of his counsel.

3. In his statement made outside the proceedings in the same case.

In the first two instances above-mentioned, the admissions made are regarded as judicial admissions. A judicial admission does not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. A judicial admission need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established.

On the other hand, statements made by a party outside the proceedings in the same case are extrajudicial admissions which may be an act, declaration or omission made by a party as to a relevant fact and may be given in evidence against him.41 This type of admission is regarded as evidence and must be offered as such; otherwise, the court will not consider it in deciding the case. If the extra-judicial statement of a party is not against his interest but is in his favor, it becomes a self-serving declaration which is inadmissible for being hearsay since it will be testified to by one who simply heard the statement and has no personal knowledge of it. But it will not be incompetent evidence, nor self-serving, if testified to by the party himself at the trial.42

By the rule’s definition, not all admissions made by a party during a judicial proceeding are judicial admissions. To qualify, they must be made and offered in the proceedings in the same case. If made in one judicial proceeding, but offered in another, they become extrajudicial admissions for purposes of the latter case. Thus, the declaration of a defendant in a case that the plaintiff therein is his agent is a judicial admission of the agency relationship between them if that fact is against the defendant’s interest. However, that same admission may only be an extrajudicial admission if considered in another case between the same parties.

With more reason, an admission made in a document drafted for purposes of filing as a pleading in the case but never filed, another pleading being filed in its stead, is not a judicial admission, for the unfiled document is not considered a pleading. Whether it would even be an extrajudicial admission would depend upon whether the document was signed by the client or only by his attorney. If signed only by the attorney, it would not be admissible at all, since an attorney has authority to make statements on behalf of his client only in open court or in a pleading actually filed.43

In criminal cases, it should be noted that an admission or stipulation made by the accused during the pretrial cannot be used in evidence against him unless reduced to writing and signed by him and his counsel. 44 But this rule does not apply to admissions made in the course of the trial. Thus, an admission made by an 4

1

4

2

4 4

Rules of Court, Rule 130, Sec. 26. Tuason v. Court of Appeals, G. R. Nos. 113779-80, February 23, 1995, 241 SCRA 695. 3 Jackson v. Schine Lexington Corporation, 305 Ky. 823, 205 S.W. 2d 1013. 4 Rules of Court, Rule 118, Sec. 4; Fule v. Court of Appeals, No. L-79094, June 22, 1988, 162 SCRA 446.

accused or his counsel during the trial may be used against the accused although not signed by either of them.45

Admissions in a pleading which had been withdrawn or superseded by an amended pleading, although filed in the same case, are reduced to the status of extrajudicial admissions and therefore must be proved by the party who relies thereon46 by formally offering in evidence the original pleading containing such extrajudicial admission.47 Consistently, the 1997 Rules of Civil Procedure provides that 'An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader xxx.'48

Since generally a judicial admission does not require proof and cannot be contradicted, any attempt made by a party to still prove it may be objected to as immaterial, i.e., not in issue anymore; and any attempt to adduce evidence in contradiction of that admission may also be objected to. In either case, the judge may himself block such attempts as improper departures from the issues of the case. Unless, of course, it can be shown that the admission was made through palpable mistake or that no such admission was made at all.49

C. Best Evidence Rule

The Best Evidence Rule is applicable only to documents. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original writing itself. 50 Not every writing is considered a document for purposes of the best evidence rule. Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.51

If a writing is offered not to prove its contents but to prove some other fact, e.g., that the writing exists, or that it is done on sheepskin, or the size of the paper it is written on, it is, for purposes of evidence, only object evidence. To determine the admissibility of object evidence, the best evidence rule does not apply. Hence, the original writing need not be presented. The existence or condition of that writing may be proved, at once, by any other evidence, like oral testimony.52

Closely related to the best evidence rule is the rule that a document or writing which is merely 'collateral' to 4

5

4

6

4

4 4 5 5 5

People v. Hernandez, G. R. No. 108028, July 30, 1996, 260 SCRA 25. Bastida v. Menzi & Co., 58 Phil. 188 [1933]. 7 Javellana v. D. O. Plaza Enterprises, Inc., G. R. No. L-28297, March 30, 1970, 32 SCRA 261; Torres v. Court of Appeals, No. L-37420, July 31, 1984, 131 SCRA 24; Director of Lands v. Court of Appeals, G.R. No. 31408, April 22, 1991, 196 SCRA 94. 8 Rules of Court , Rule 10, Sec. 8. 9 Rules of Court, Rule 129. 0 Rules of Court, Rule 130. 1 Rules of Court, Rule 130, Sec. 2. 2 People v. Tandoy, G. R. No. 80505, December 4, 1990, 192 SCRA 28.

the issue involved in the case on trial need not be produced. This is the collateral facts rule. Thus, where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible, the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented. In this case, the contents of the document are not sought to be proven, but are simply incidental to the fact being testified to. Thus, the best evidence rule cannot apply.53

The original of a document is one the contents of which are the subject of inquiry. 54 Even a mere photocopy of a document may be an original if it is the contents of that photocopy that are inquired into.

When a document is in two or more copies executed at or about the same time with identical contents, all such copies are equally regarded as originals. Thus, the first copy and four (4) carbon copies of a contract, all of which are identical, are all considered originals. Each of them may be offered as proof of their contents. But if a party has lost his original document, he must account not only for the unavailability of his copy but also for the loss, destruction or unavailability of the rest of the original copies. Otherwise, secondary evidence of his lost original will not be admitted. Any of the four other extant originals would still be the best available evidence.55

Secondary evidence may also be resorted to, as though the document had been lost, when the adverse party who has custody of the original refuses, despite reasonable notice, to produce the document. 56 In this case, such adverse party should not later be allowed to introduce the original for the purpose of contradicting the secondary evidence presented.57

When the proper foundation for the reception of secondary evidence has been laid, the best evidence rule insists on a preference in the type of secondary evidence that will be presented. Thus, the Rule provides:

When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.

Hence, before a party may offer the testimony of witnesses to prove the contents of a lost original, he must first show or prove that no copy of the document exists and, in addition, that there exists no authentic document reciting the contents of the unavailable original. This second layer of foundations may of course be established by oral testimony, but it must be established.

D. Parol Evidence Rule

The Parol Evidence Rule applies only to contractual documents.58 However, it does not apply where at least one party to the suit is not a party – nor a privy to a party – to the written instrument and does not base his claim, nor assert a right arising from the instrument or established therein. Thus, a total stranger 5

3

5

4

5 5 5 5

Air France v. Carrascoso, G. R. No. 21438, September 28, 1966, 18 SCRA 155. Rules of Court, Rule 130, Sec. 4. 5 De Vera v. Aguilar, G. R. No. 83377, February 9, 1988, 218 SCRA 602. 6 Rules of Court, Rule 130, Sec. 6. 7 Wigmore on Evidence, § 1210. 8 Cruz v. Court of Appeals, G. R. No. 79962, December 10, 1990, 192 SCRA 209.

to the writing is not bound by its terms and is allowed to introduce extrinsic – or parol – evidence against the efficacy of the writing.59

In order that parol evidence may be admissible, the exceptional situation, including the fact of a subsequent agreement, must be put in issue in the pleading. Otherwise, no parol evidence can be admissible. When the defendant invokes such exceptional situations in his answer, such facts are sufficiently put in issue as to allow the presentation of parol evidence. However, if, when presented, the parol evidence is not objected to, such objection is deemed waived. E. Admissibility Of Extra-Judicial Confessions The extra-judicial confession of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.60 Note that if the confession is judicially given, either by way of a plea of guilty upon arraignment or made in the course of the trial, it need not be offered in evidence since it is a judicial admission.61

An extra-judicial confession may be given either before the custodial investigation stage or during custodial investigation. A person is placed under custodial investigation when after a crime has been committed, the authorities’ investigation ceases to be a mere general inquiry into the circumstances and authorship of the crime and begins to focus on the individual as a suspect. 62 Under Republic Act 7438,63 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.

When under custodial investigation, a person shall have the constitutional right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of a counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.64 It must be noted that neither a lawyer, NBI agent nor the City Legal Officer can be considered an independent counsel for this purpose.

If the person under custodial investigation has not been informed of any of the above-mentioned rights, any confession or declaration given by him during said investigation shall be inadmissible. 65 To be valid, the information to be given to the accused regarding his rights must be more than a perfunctory recitation of such rights; it must be made in practical terms, in a language or dialect he understands and in a manner he comprehends, the degree of explanation varying according to the person’s level of education and intelligence.66 The presumption of regularity in the performance of official duty does not apply to in-custody confessions. The prosecution must prove compliance with the aforementioned constitutional requirements.67

No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the 5

9

6

0

6 6 6

6 6 6 6

Lechugas v. Court of Appeals, Nos. L-39972 and L-40300, August 6, 1986, 143 SCRA 335. Rules of Court, Rule 130, Sec. 33. 1 Ibid, Rule 129, Sec. 4. 2 Miranda v. Arizona, 384 U.S. 436; Escobedo v. Illinois, 378 U.S. 478. 3 An Act Defining Certain Rights Of Persons Arrested, Detained, Or Under Custodial Investigation As Well As The Duties Of The Arresting, Detaining, And Investigating Officers And Providing Penalties For Violations Thereof. 4 Constitution, Art. III, Sec. 12. 5 People v. Jimenez, No. L-40677, May 31, 1976, 71 SCRA 186. 6 People v. Camalog, G. R. No. 77116, January 31, 1989, 169 SCRA 816. 7 People v. Trinidad, No. L-38930, June 28, 1988, 162 SCRA 714.

person arrested, or by any person in his behalf, or appointed by the court upon petition either by the detainee himself or by anyone in his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of this procedure, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.68

In People v. Policarpio,69 the accused who was arrested in a buy-bust operation refused to give a statement after having been informed of his Constitutional rights; but he was made to acknowledge in writing that six plastic bags of marijuana leaves were confiscated from him, and he was also made to sign a receipt for Php 20.00 as the purchase price of the marijuana. The Supreme Court ruled that said receipts were in effect extra-judicial confessions given during custodial investigation and were therefore inadmissible for having been given without the assistance of counsel.

An extra-judicial confession made by an accused shall not be sufficient for conviction unless corroborated by evidence of corpus delicti.70 Thus, in People v. Barlis,71 the accused who validly gave a statement during custodial investigation confessing to the commission of homicide and robbery was convicted of homicide only and acquitted of the robbery charge in the absence of evidence establishing the corpus delicti of robbery.

The rights guaranteed a person under Art. III, Sec. 12 of the Constitution are not available when he is not under custodial investigation. Thus, a statement or confession voluntarily given by an employee during an administrative investigation that he had malversed his employer’s funds is admissible although without a prior information of said rights and without the assistance of counsel.72

Similarly competent is the admission of adulterous conduct made by a woman to her husband when the latter confronted her with incriminatory evidence in their residence.73

F. Examination Of Witnesses

1. Generally, the testimony of a witness is elicited through questions propounded by the examining counsel in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. 74 The main purpose of requiring a witness to appear and testify orally in open court is to secure to the adverse party the opportunity to cross-examine the witness. Another reason for such rule is to enable the judge to observe the countenance and demeanor of the witness while testifying, an important factor in determining the credibility of a witness. Therefore, it would be impermissible and would be a grave abuse of discretion on the part of the trial judge to accept the affidavit of a witness in lieu of the latter’s direct testimony subject to cross-examination.75 6

6 7 7 7 7 7 7

People v. Galit, No. L-51770, March 20, 1985, 135 SCRA 465; Morales v. Ponce-Enrile, No. L-61016, April 20, 1983, 121 SCRA 538. 9 People v Policarpio, No. L-69844, February 23, 1988, 158 SCRA 85. 0 Rules of Court, Rule 133, Sec. 3 1 People v Barlis, G. R. No. 101003, March 24, 1994, 231 SCRA 426. 2 People v. Ayson, G. R. No. 85215, July 7, 1989, 175 SCRA 216. 3 Arroyo v. Court of Appeals, G. R. No. 96602, November 19, 1991, 203 SCRA 750. 4 Rules of Court, Rule 132, Sec. 1. 5 People v. Estenzo, G. R. No. L-41166, August 25, 1976, 72 SCRA 428. 8

The aforesaid rule is relaxed under the Rule on Summary Procedure (RSP) where in criminal cases covered by said Rule, the affidavits and counter-affidavits of the parties’ witnesses constitute their direct testimonies subject however to cross-examination, re-direct or re-cross examination.76 And in civil actions covered by the RSP, no examination of witnesses is even required or allowed; the parties simply submit the affidavits of their witnesses and other evidence on the factual issues defined in the preliminary conference order prepared by the judge after the termination of said conference.77

Another exception is found in the trial of agrarian cases where the parties submit affidavits of their witnesses subject to cross-examination.78

2. One question often asked is whether a witness may be allowed to testify by narration. While the general rule is that material and relevant facts are elicited from a witness by questions put to him, it still rests within the sound discretion of the trial judge to determine whether a witness will be required to testify by question and answer, or will be permitted to testify in narrative form.79

There is no legal principle which prevents a witness from giving his testimony in narrative form if he is requested to do so by counsel. A witness may be allowed to testify by narration if it would be the best way of getting at what he knew or could state concerning the matter at issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of the matters related as they occurred. Moreover, narrative testimony may be allowed if material parts of his evidence cannot be easily obtained through piecemeal testimonies. But if in giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel objecting to such testimony to interpose and arrest the narration by calling the attention of the court particularly to the objectionable matter and, by a motion to strike it out, obtain a ruling of the court excluding such testimony from the case.80 While a witness may be permitted in the discretion of the court to narrate his knowledge of material facts bearing upon the case without specifically being interrogated in detail, it is also within the discretion of the court to prohibit a witness from volunteering unsought information in connection with the case.81

3. Some jurisprudential rules regarding uncompleted testimonies:

3.1 When a witness had testified on direct examination but was not cross-examined because he dies after numerous postponements of his cross-examination attributable to the cross-examining party whereas the witness had all the time been available for cross-examination, his direct testimony shall be allowed to remain in the record and cannot be ordered stricken off. The crossexaminer is deemed to have waived his right to cross-examine.82

3.2 On the contrary, when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent.83

7

6

7

7

7 7 8 8 8 8

Rule on Summary Procedure, Sec. 15. Rule on Summary Procedure, Sec. 9. 8 Pres.Decree No. 946, Sec. 16. 9 98 C.J.S. Sec. 325, p. 26. 0 Ibid. 1 People v. Calixtro, G. R. No. 92355, January 24, 1991, 193 SCRA 303. 2 Dela Paz, Jr., v. Intermediate Appellate Court, No. L-71537, September 17, 1987, 154 SCRA 65. 3 Ortigas, Jr., v. Lufthansa German Airlines, No. L-28773, June 30, 1975, 64 SCRA 610.

3.3 The direct testimony of a witness who dies before conclusion of the cross-examination can be stricken only insofar as not covered by the cross-examination, and absence of a witness is not enough to warrant striking his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, and the matter on which further crossexamination is sought is not in controversy.84

4. A judge may intervene in the trial of a case to promote expedition and avoid unnecessary waste of time or to clear up some ambiguity. A judge is not a mere referee like that of a boxing bout. He should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling the attention of counsel to points at issue that are overlooked, directing them to ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks. The number of times a judge intervenes in the examination of a witness is not necessarily an indication of bias. It cannot be taken against a judge if his clarifying questions happen to reveal certain truths which tend to spoil the theory of one party.85

5. The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution.86

G. Authentication And Proof Of Documents

For the purpose of their presentation in evidence, documents are either public or private. 87 Public documents need not be authenticated; private documents have to be authenticated to be admissible in evidence.

There are only three types of public documents, viz.: (1) the written official acts or records of official acts of the sovereign authority, official bodies and tribunals and public officers, whether of the Philippines or of a foreign country, e.g., transfer certificate of title, the Official Gazette, entries in the book of entries of judgments; (2) documents acknowledged before a notary public except last wills and testaments; (3) public records, kept in the Philippines, of private documents required by law to be entered therein, e.g., certified true copies of birth certificates or of death certificates issued by the local civil registrar.88

All other writings are private and thus ought to be authenticated. Their due execution and genuineness must be proved either (1) by anyone who saw the document executed or written; or (2) by evidence of the genuineness of the signature or handwriting of the maker.89 Note that the opinion of an ordinary witness regarding the handwriting of a person is admissible under Rule 130, Sec. 50, as an exception to the opinion rule provided the witness is shown to have sufficient familiarity with the handwriting.

The last paragraph of Rule 132, Sec. 20 states that 'Any other private document need only be identified as that which it is claimed to be.' This provision should be taken in relation to the first paragraph which reads: 'Before any private document offered as authentic is received in evidence, its due execution and genuineness must be proved.' If it is offered as a genuine writing, it must be proved to be genuine. If it is offered as a forgery, it must be proved to be a forgery. If a private writing is offered not as an authentic 8

4

8

5

8 8 8 8

People v. Señeris, No. L-48883, August 6, 1980, 99 SCRA 92 People v. Hatton, G. R. No. 85043, June 16, 1992, 210 SCRA 1. 6 Rules of Court, Rule 133, Sec. 6. 7 Rules of Court, Rule 132, Sec. 19. 8 Ibid. 9 Rules of Court, Rule 132, Sec. 20.

document, it need only be identified as that which the offeror claims it to be. Thus, if an anonymous letter a party has received is relevant to the issues in a case, he need not authenticate it since he cannot possibly do that anyway. He only has to identify it as the anonymous letter he had received. The authenticity of the document is immaterial for he is not offering it as authentic. An ancient document, although private in nature, needs no authentication either; provided, it appears to be more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alteration or circumstances of suspicion.90 Of course, also, if the authenticity of a private document is judicially admitted by the other, a party need not authenticate it.

Not all public documents have the same probative value. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated.91 Hence, the entries made by the clerk of court in the book of entries of judgments are prima facie evidence of the entered facts; the clerk of court need not be called to attest to the truth thereof. Such evidence of course are only prima facie, i.e., good until rebutted by reliable contradictory evidence.

But "All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter." 92 Thus, a certified true copy of a death certificate issued by the local civil registrar – although a public document – is proof only of the fact which gave rise to its execution, i.e., the fact of death and the date of that fact. The death certificate is not evidence of the cause of death, which ought to be proved by competent evidence. H. Tender Of Excluded Evidence

Evidence formally offered by a party may be admitted or excluded by the court. If a party’s offered documentary or object evidence is excluded, he may move or request that it be attached to form part of the record of the case. If the excluded evidence is oral, he may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. If a question asked of a witness by the counsel who presented him is objected to and the objection is sustained, counsel may manifest for the record what the witness would have answered if the witness had been allowed to do so. This procedure is known as offer of proof or tender of excluded evidence93 and is made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence. The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case. And since the offer of proof is for appellate purposes, the same cannot be denied by the trial court.

9

0

9

1

9 9

Rules of Court, Rule 132, Sec. 22. Ibid, Sec. 23. 2 Rules of Court, Rule 132, Sec. 23. 3 Ibid, Rule 130, Sec. 40.

CIVIL PROCEDURE PART ONE

ORDINARY CIVIL ACTIONS

I. CASE BEGINS WITH THE FILING OF COMPLAINT

1. Preliminary

1. Definition of complaint

A complaint is a pleading alleging a plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.1

2. Requirements

2.1 Verification

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. 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.2 Absence of verification when required is not a jurisdictional defect. It is just a formal defect which can be waived.3 The verification by a lawyer is sufficient.4

2.2 Certificate against forum-shopping

An important component of a complaint or any initiatory pleading is the certificate of non-forum shopping. The rule requires that the plaintiff or principal party certifies 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;

1 2 3

4

Rules of Court, Rule 6, Sec. 3.

Rules of Court, Rule 7, Sec. 4, as amended by A. M. No. 002-10-SC. Philippine Bank of Commerce v. Macadaeg, 109 Phil. 981 [1960]; Buenaventura v. Uy, No. L-28156, March 31, 1987, 149 SCRA 22. Uy v. Workmen’s Compensation Commission, L-43389, April 28, 1980, 97 SCRA 255.

(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.5

2.2.1 Nature

(a) The required certificate of non-forum shopping is mandatory but not jurisdictional.6

(b) Initiatory pleadings are the complaint, permissive counterclaim, cross-claim, third-party (fourth-party, etc.), complaints and complaints-in-intervention. The certificate of non-forum shopping should be signed by the plaintiff (permissive counterclaimant, cross-claimant, third-party, etc. – plaintiff and plaintiff-in-intervention) and not the counsel.7

(c) There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in other fora, or when he repetitively avails himself of "several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same issue or transactions involving the same essential facts and circumstances, and all raising substantially the same issues either pending in or resolved adversely by some other court." 8 Elsewise stated, forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other.9 Where judgment has already become final and executory, res judicata and not forum shopping should be pleaded as a defense. Forum shopping applies only when two (2) or more cases are still pending.10

(d) Failure to comply with the requirement of a certificate of non-forum shopping may not be cured by mere amendment of the complaint or other initiatory pleading. The initiatory pleading should be dismissed without prejudice, unless otherwise provided, upon motion and after hearing. However, even if there is a certificate of non-forum shopping, 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 of the initiatory pleading and shall constitute direct contempt, as well as a cause for administrative sanctions against the former.11

2. Filing of Complaint

1. Manner

Filing of the complaint is the act of presenting it to the Clerk of Court. 12 This may be done by presenting the original copy plainly indicated as such, personally to the clerk of court or by sending it by registered mail to the 5 6 7 8 9 1 1 1

Rules of Court, Rule 7, Sec. 5. Robern Development Corp. v. Quitain, G.R. No. 135042, September 23, 1999, 315 SCRA 150. Five-Star Bus Company v. Court of Appeals, G.R. No. 127064, August 31, 1999, 313 SCRA 367. Spouses Diu v. Ibajan, G. R. No. 132657, January 19, 2000. Buan v. Lopez, No. L-75349, October 13, 1985, 145 SCRA 34. 0 Employees Compensation Commission v. Court of Appeals, G.R. No. 115858, June 26, 1996, 257 SCRA 717. 1 Rules of Court, Rule 7, Sec. 5. 2 Rules of Court, Rule 13, Sec. 2.

clerk of court. In personal filing, the date and hour of receipt by the clerk of court as indicated on the face of the complaint is the date and hour of filing. In filing by registered mail, the date of posting appearing on the envelope shall be considered the date of filing.13

Filing of a complaint by mail other than through registry service of the government postal agency is not authorized. Thus, if a complaint is mailed through any private letter-forwarding agency, the date of receipt by the clerk of court is the date of filing.14

Filing of the complaint should be distinguished from service of pleadings subsequent to the filing of the complaint.15 In service of pleadings, priorities in modes of service must be strictly observed.16

2. Payment of docket and other lawful fees

Ballatan v. Court of Appeals,17 summarizes the rules on payment of docket fees:

(a) The rule in this jurisdiction is that when an action is filed in court, the complaint must be accompanied by the payment of the requisite docket and filing fees.

(b) In real actions, the docket and filing fees are based on the value of the property and the amount of damages claimed, if any, which must be specified in the body and prayer of the complaint. Note that in Tacay v. RTC of Tagum Davao del Norte, the Supreme Court opined that a real action may be commenced or prosecuted without an accompanying claim for damages.18

(c) If the complaint is filed but the fees are not paid at the time of filing, the court acquires jurisdiction upon full payment of the fees within a reasonable time as the court may grant, barring prescription.

(d) Where the fees prescribed for the real action have been paid but the fees of certain related damages are not, the court, although having jurisdiction over the real action, may not have acquired jurisdiction over the accompanying claim for damages.19

(e) Accordingly, the court may expunge those claims for damages, or allow, on motion, a reasonable time for amendment of complaint so as to allege the precise amount of damages and accept payment of the requisite legal fees.20

1

3

1

4

1 1 1 1 1

2

Ibid., Sec. 3. Benguet Electric Cooperative, Inc v. National Labor Relations Commission, G. R. No. 89070, May 18, 1992, 209 SCRA 55. 5 Rules of Court, Rule 13, Sec. 4. 6 Ibid., Sec. 11. 7 G. R. No. 125683, March 2, 1999 304 SCRA 34. 8 Tacay v. Regional Trial Court of Tagum, G. R. Nos. 88075-77, December 20, 1989, 180 SCRA 483. 9 Original Development and Construction Corporation v. Court of Appeals, G. R. No. 94677, October 15, 1991, 202 SCRA 753. 0 Ibid.

(f) If there are unspecified claims, the determination of which may arise after the filing of the complaint or similar pleading, the additional filing fee thereon shall constitute a lien on the judgment award. 21

(g) The same rule also applies to third-party claims and other similar pleadings.22

Note: Even if the value of a property is immaterial in the determination of the court’s jurisdiction, it should however be considered in the determination of the amount of docket fee.23 2. COURT ACQUIRES JURISDICTION OVER THE PARTIES While the court acquires jurisdiction over the plaintiff by the latter’s voluntary submission to said jurisdiction with the filing of the complaint, the court acquires jurisdiction over the defendant by his voluntary submission to said jurisdiction or the service of summons and a copy of the complaint upon him.

1. Modes of Service of Summons

There are four (4) modes of serving summons:

(a) personal service;

(b) substituted service;

(c) constructive (by publication) service; and

(d) extraterritorial service.

1. Personal Service

Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.24 If there are two (2) or more defendants, each one of them should be served a copy of the summons and the complaint.25

2. Substituted Service

If, for justifiable causes, the defendant cannot personally be served with summons within a reasonable time, 2

1

2

2

2 2 2

Ibid. Sun Insurance Office Ltd. v. Asuncion, G. R. Nos. 79937-38, February 13, 1989, 170 SCRA 274. 3 Tacay v. Regional Trial Court of Tagum, supra, note 18. 4 Rules of Court, Rule 14, Sec. 6. 5 Bello v. Ubo, No. L-30353, September 30, 1982, 117 SCRA 91.

service may be effected:

(1) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or

(2) by leaving the copies at the defendant’s office or regular place of business with some competent person in charge thereof. 26

In substituted service, it is immaterial that the defendant does not in fact receive actual notice. This will not affect the validity of the service.27

There must be strict compliance with the requirements of substituted service.28 For substituted service to be valid, the return must show:

(1) the efforts exerted by the sheriff to effect personal service within a reasonable period of time; impossibility of service should be shown by stating the efforts made to find the defendant;

(2) that such personal service cannot be effected for justifiable reasons;

(3) the service of summons was made at the defendant’s residence or office or regular place of business at the time of the service, the address of the defendant to whom summons was supposed to have been served must be indicated in the return; and

(4) the service was made with some person of suitable age and discretion residing therein, if effected at defendant’s residence, or with some competent person in charge thereof, if effected at defendant’s office or regular place of business, at the time of the service. 29

Impossibility of personal service for justifiable reasons must be shown.30 Otherwise, the service is invalid.31 The sheriff’s certification that he duly served summons on a defendant does not necessarily mean that he validly served the summons. Impossibility of personal service must be established either by the return or by evidence to that effect.32

2.1 Service on Domestic Private Juridical Entity

2

6

2

7

2 2 3 3 3

Rules of Court, Rule 14, Sec. 7. Montalban v. Maximo, No. L-22997, March 15, 1968, 22 SCRA 1070. 8 Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, No. L-70661, April 9, 1987, 149 SCRA 194. 9 Rules of Court, Rule 14, Sec. 7. 0 Administrative Circular No. 59. 1 Venturanza v. Court of Appeals, No. L-77760, December 11, 1987, 156 SCRA 305. 2 Keister v. Navarro, No. L-29067, May 31, 1977, 77 SCRA 209, Filmerco Commecial Co., Inc. v. Intermediate Appellate Court, supra, note 28.

Service on an agent of the corporation is not permitted. The designation of persons or officers who are authorized to accept summons for a domestic corporation is limited and more clearly specified. The rule states 'general manager' instead of only 'manager,' 'corporate secretary' instead of 'secretary' and 'treasurer' instead of 'cashier.'

Accordingly, the Court ruled that the service of summons upon the Branch Manager of petitioner at its branch office in Cagayan de Oro City instead of upon the general manager at its principal office in Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner. The Court stressed the purpose of the strict enforcement of the rule on summons by providing that under Section 20 of Rule 14, the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Any proceeding undertaken by the trial court will consequently be null and void.33

2.2 Service on foreign private juridical entity may be allowed only if there are well-pleaded allegations of having transacted or doing business in the Philippines.34

The fact of doing business in the Philippines must be established by appropriate allegations in the complaint. The court need not go beyond the allegations of the complaint in order to determine whether it has jurisdiction.35 A determination that the foreign corporation is doing business is only tentative and is made only for the purpose of enabling the local court to acquire jurisdiction over the foreign corporation through service of summons pursuant to Rule 14, Section 12. Such determination does not foreclose a contrary finding should evidence later show that it is not transacting business in the country.36

3. Constructive Service (By Publication)

Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is 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.37

When the defendant is a resident of the Philippines, service of summons by publication is allowed in any action.

4. Extraterritorial Service, When Allowed

Extraterritorial service of summons is allowed where the action is against a non-resident defendant who is not found in the Philippines and the action:

(1) affects the personal status of plaintiffs; 3

3

3

4

3

3 3

E. B. Villarosa & Partner Co., Ltd. v. Benito, G. R. No. 136426, August 4, 1999, 312 SCRA 65. Rules of Court, Rule 14, Sec. 12. 5 Litton Mills, Inc. v. Court of Appeals, G. R. No. 94980, May 15, 1996, 256 SCRA 696; Signetics Corporation v. Court of Appeals, G. R. No. 105141, August 31, 1993, 225 SCRA 737. 6 Ibid. 7 Rules of Court, Rule 14, Sec. 14.

(2) relates to or subject of which is property in the Philippines (real or personal), in which the defendant has claim, lien or interest, actual or contingent; or

(3) in which relief demanded consists wholly, or in part, in excluding the defendant from any interest therein; or

(4) property of defendant has been attached in the Philippines.38

Thus, extraterritorial service of summons is proper only in actions in rem or quasi-in-rem. The remedy against a non-resident defendant who cannot be served with summons in the Philippines is to locate real or personal property and attach the property. The action becomes in rem or quasi-in-rem39 in which case, service by publication is permissible. Where, however, the attachment is invalid, the service by publication is void.40 To be effective, extraterritorial service of summons must be with leave of court and only through any of the following means:

(1) Personal service;

(2) By publication (and copy of the summons and order of the court must be sent by registered mail to the last known address);

(3) By publication (and copy of summons and order of the court) must be sent by registered mail at last known address; Any other manner which the court may deem sufficient.41

Notes: Service of summons on husband is not binding on wife who is a non-resident.42 However, substituted service43 or extraterritorial service of summons by leave of court on a resident defendant who is temporarily outside of the Philippines is valid.44 2. Effect of Lack of Summons The trial court does not acquire jurisdiction and renders null and void all subsequent proceedings and issuances in the actions from the order of default up to and including the judgment by default and the order of execution.45 However, lack of summons may be waived as when the defendant fails to make any seasonable objection to the court’s lack of jurisdiction over the person of the defendant.46

3. INCIDENTS AFTER COURT HAS ACQUIRED JURISDICTION OVER THE PARTIES 1. Preliminary 3

3 4 4 4 4 4 4 4

Banco Español-Filipino v. Palanca, 37 Phil 921 [1918]; Perkins v. Dizon, 69 Phil 186 [1939]; Sahagum v. Court of Appeals, G. R. No. 78328, June 3, 1991, 198 SCRA 44. 9 Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, supra, note 28. 0 Obaña v. Court of Appeals, G. R. No. 87635, April 27, 1989, 172 SCRA 886. 1 Rules of Court, Rule 14, Sec. 17. 2 Valmonte v. Court of Appeals, G. R. No. 108538, January 22, 1996, 252 SCRA 92. 3 Montalban v. Maximo, supra, note 27. 4 Rules of Court, Rule 14, Sec. 16. 5 Toyota Cubao, Inc. v. Court of Appeals, G. R. No. 126321, October 23, 1997, 281 SCRA 198. 6 Baticano v. Chu, Jr., L-58036, March 16, 1987, 148 SCRA 541. 8

After the court has acquired jurisdiction over the parties, but before the defendant files his responsive pleading, the parties may file the following notice, motions and pleadings:

1. Plaintiff

1.1 notice of dismissal of the complaint under Rule 17, Section 1;

1.2 amended complaint under Rule 10, Section 2;

1.3 motion for leave to file a supplemental complaint under Rule 10, Section 6;

1.4 motion for leave of court to take the deposition upon oral examination or written interrogatories of any person, whether party or not under Rule 23, Section 1;

1.5 motion for leave of court to serve written interrogatories upon defendant under Rule 25, Section 1;

1.6 motion for production or inspection of documents of things under Rule 27, Section 1;

1.7 motion to declare defendant in default under Rule 9, Section 3.

2. Defendant

2.1 motion to set aside order of default under Rule 9, Section 3;

2.2 motion for extension of time to file responsive pleading under Rule 11, Section 11; and

2.3 motion for bill of particulars under Rule 12.

2.4 notice of dismissal of the complaint under Rule 17, Section 1. 2. Rules on the Specific Incidents 1. Notice of Dismissal of Complaint

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.47

4

7

Rules of Court, Rule 17, Sec. 1.

As a general rule, the dismissal of the complaint under this rule is without prejudice. However, the following are the recognized exceptions:

(a) where the notice of dismissal so provides;

(b) where the plaintiff has previously dismissed the same case in a court of competent jurisdiction;

(c) even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved.48 For the notice of dismissal to be effective, there must be an order confirming the dismissal.49 2. Amended Complaint 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.50

The filing by the defendant of a motion to dismiss does not affect the plaintiff’s right to amend his complaint without first securing leave of court because a motion to dismiss is not a responsive pleading. 51 Leave of court is necessary after the filing of a responsive pleading. However, even substantial amendments may be made under this Rule. But such leave may be refused, if it appears to the court that the motion was made with intent to delay.52 3. Supplemental Complaint 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.53

The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.54 The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.55

A supplemental pleading incorporates matters arising after the filing of the complaint. A supplemental pleading is always filed with leave of court. It does not result in the withdrawal of the original complaint.

4. Deposition (Rule 23)

A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a 4

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5 5 5 5 5 5

Serrano v. Cabrera, 93 Phil 774 [1953]. Rules of Court, Rule 17, Sec. 1; Minute Resolution, Gordon v. Payumo, G. R. No. 134071, July 7, 1998. 0 Rules of Court, Rule 10, Sec. 2. 1 Paeste v. Jarique, 94 Phil 179 [1953]. 2 Rules of Court, Rule 10, Sec. 3. 3 Rules of Court, Rule 11, Sec. 7. 4 Ibid. 5 Ibid.

party’s or witness’ deposition is inadmissible in evidence for being hearsay. 56 The exceptions however to the inadmissibility of such deposition are provided for in Rule 23, Section 4, as follows:

(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 to 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.

5. Written Interrogatories upon Defendant (Rule 25, Section 1) A judgment by default may be rendered against a party who fails to serve his answer to written interrogatories.57

If a party fails to avail of written interrogatories as a mode of discovery, the effect is provided for in Rule 25, Section 6, to wit:

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.

6. 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 copies have already been furnished.58

Unless thereafter 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 which are, or ought to be within the personal knowledge of the latter, shall not be permitted to present evidence on such facts.59 7. Production or Inspection of Document or Things (Rule 27, Section 1) 5

6

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Dasmariñas Garments, Inc. v. Reyes, G. R. No. 108229, August 24, 1993, 225 SCRA 622. Rules of Court, Rule 29, Sec. 3 (3). 8 Rules of Court, Rule 26, Sec. 1. 9 Ibid, Sec. 5.

This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. 8. Physical and Mental Examination of a Party (Rule 28, Section 1) 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. 9. Consequences of Refusal (Rule 29) A trial court has no discretion to determine what the consequences of a party’s refusal to allow or make discovery should be; it is the law which makes that determination; it is grave abuse of discretion for the court to refuse to recognize and observe the effects of that refusal as mandated by law.60

10. Default (Rule 9, Section 3)

If the defending party fails to answer within the time allowed therefore, 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.61

Another ground to declare a defending party in default is when he fails to furnish a copy of the answer to the claiming party.62

A declaration of default cannot be made by the court motu proprio; there must be a motion to that effect.63 If no motion to declare defendant in default is filed, the complaint should be dismissed for failure to prosecute.

10.1 Rules on Default

10.1.1 Effect of Order of Default

(a) A party in default loses his standing in court. He cannot appear therein, adduce evidence and be heard nor take part in trial.64 He cannot file a motion to dismiss without first filing a motion to set aside the order of default. 65 He loses his right to present evidence, control the proceedings and examine the witnesses or object to plaintiff’s evidence.66

(b) A motion to declare the defending party in default should be served upon him. A party in default, however, 6

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6

6 6 6 6

Diman v. Alimbres G. R. No. 131466 November 27, 1998, 299 SCRA 459. Rules of Court, Rule 9. 2 Gonzalez v. Francisco, 49 Phil 747 [1926]; Ramirez v. Court of Appeals, G. R. No. 76366, July 3, 1990, 187 SCRA 153. 3 The Philippine British Co., Inc. v. De los Angeles, Nos. L-33720-1, March 10, 1975, 63 SCRA 50. 4 Cavili v. Florendo, No. L-73039, October 9, 1987, 154 SCRA 610. 5 Santos v. Samson, No. L-46371, December 14, 1981, 110 SCRA 215. 6 Cavili v. Florendo, supra, note 64.

shall be entitled to notice of subsequent proceedings but not to take part in the trial.67

(c) Being declared in default does not constitute a waiver of all rights. What is waived is only the right to be heard and to present evidence during trial while default prevails. A party in default is still entitled to notice of final judgments and orders and proceedings taken subsequent thereto.68 He may be cited and testify as a witness.69

10.1.2 Summary of the Remedies in Default70

(a) From notice of the order of default but before judgment, motion to set aside order of default; and, in a proper case, petition for certiorari under Rule 65.

(b) After judgment but before its finality:

(i) motion for reconsideration under Rule 37, Section 1;

(ii) motion for new trial under Rule 37, Section 1; and

(iii) appeal under Rule 41, Section 1.

(c) After finality of judgment:

Within the prescribed period, petition for relief from judgment under Rule 38, Section 1; in a proper case and within the prescribed period, petition for certiorari under Rule 65; and in a proper case and within the prescribed periods, petition for annulment of judgment under Rule 47.

10.1.3 Actions where Default is Not Allowed

(a) Action for declaration of the nullity of marriage; action for annulment of marriage; and, action for legal separation.

Note: If the defending party fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion exists between the parties, and if there is no collusion, to intervene for the State in order to see 6

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Rules of Court, Rule 9, Sec. 3(a). Garcia v. Court of Appeals, G. R. No. 83929, June 11, 1992, 209 SCRA 732. 9 Cavili v. Florendo, supra, note 64. 0 Rules of Court, Rule 9, Sec. 3 (b), Lina v. Court of Appeals, No. L-63397, April 9, 1985, 135 SCRA 637; Circle Financing Corporation v. Court of Appeals, G. R. No. 77315, April 22, 1991, 196 SCRA 166; Malanyaon v. Suñga, G. R. No. 49463, May 7, 1992, 208 SCRA 436; Omico Mining and Industrial Corporation v. Vallejos, No. L-38974, March 25, 1975, 63 SCRA 285; Matute v. Court of Appeals, L-26571, January 31, 1969, 26 SCRA 768; Akut v. Court of Appeals, G. R. No. L-45472, August 30, 1982, 116 SCRA 213.

to it that the evidence submitted is not fabricated;71

(b) Before expiration of period to answer as when there is a pending motion for extension;72

(c) In actions governed by the Rule on Summary Procedure, a motion to declare defendant in default is not allowed.73

10.1.4 Two (2) Kinds of Proceedings after Declaration of Default and the Extent of Relief that may be Granted

(a) Without Hearing

The Court may immediately render judgment granting the claimant such relief as his pleading may warrant. Such relief however shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.74

(b) With Hearing

The court may, in its discretion, allow or require the claimant to submit evidence. Such reception of evidence may be delegated to the Clerk of Court. After the reception of claimant’s evidence, the court may render judgment granting the reliefs prayed as established by the evidence. It may also award unliquidated damages without exceeding the amounts prayed for.75 11. Extension of Time to file Responsive Pleading (Rule 11) The granting of a motion to extend the time to plead is addressed to the sound discretion of the court. 76 The court can extend but not shorten the period to plead as fixed by the Rules. 12. Bill of Particulars (Rule 12, Section 1) Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within 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.

The Court need not wait for the date set for hearing of the motion. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either grant or deny it or hold a hearing therein.77 7

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Rules of Court, Rule 9, Sec. 3 (e). Joesteel Container Corporation v. Commonwealth Financing Corporation, No. L-25778, September 30, 1982, 117 SCRA 43; Denso (Phils.), Inc. v. Intermediate Appellate Court, No. L-75000, February 27, 1987, 148 SCRA 280; Continental Cement Corporation v. Court of Appeals, G. R. No. 88586, April 27, 1990, 184 SCRA 728. 3 Rules of Court, Rule 70, Secs. 13 and 19. 4 Rules of Court, Rule 9, Sec. 3 (d). 5 Rules of Court, Rule 9, Sec. 3 (d). 6 Naga Development Corporation v. Court of Appeals, G. R. No. 28173, September 30, 1971, 41 SCRA 105. 7 Rules of Court, Rule 12, Sec. 2.

If the order directing the plaintiff to submit a bill of particulars is not complied with, the court may order the striking out of the pleading or the portion thereof to which the order was directed or make such orders as it deems just.78

13. Motion to Dismiss

1. Grounds (Rule 16, Section 1)

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.

It is a decisional rule that in a motion to dismiss on the ground that the complaint states no cause of action, the movant hypothetically admits the truth of the allegations of the complaint which are relevant and material to plaintiff’s cause of action. This admission does not include inferences or conclusions drawn from the alleged facts nor to matters of evidence, surplasage or irrelevant matters nor to allegations of fact the falsity of which is subject to judicial nature.79 7

8

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Ibid., Sec. 4. De Dios v. Bristol Laboratories (Phil.), Inc., G. R. No. 25530, January 29, 1974, 55 SCRA 349.

Formal Requisite: The motion must comply with Rule 15. The court is without authority to act on the motion without proof of service of the notice of hearing.80

2. Discussion of Individual Grounds

2.1 Court has no jurisdiction over the person defending party.

2.2 Court has no jurisdiction over the subject matter of the claim.81

2.3 Venue is improperly laid.

(a) Venue of an action depends upon the:

a.1 nature of the action;

a.2 residence of the parties;

a.3 stipulation of the parties; and

a.4 law.

(b) Test to Determine Nature of Action

The nature of the action is determined from the allegations of the complaint, the character of the relief, its purpose and prime objective. When the prime objective is to recover real property, it is a real action.82

(c) Rule that Stipulations as to Venue may Either Be Permissive or Mandatory

Written stipulations are either mandatory or permissive. In interpreting stipulations as to venue, inquiry must be made as to whether or not the agreement is restrictive in the sense that the suit may be filed only in the place agreed upon or merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules.83

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Rules of Court, Rule 15, Sec. 6. Ibid. 2 Fortune Motors, Inc. v. Court of Appeals, G. R. No. 76431, October 19, 1989, 178 SCRA 564. 3 Rules of Court, Rule 4, Sec. 4 (b), Polytrade v. Blanco, No. L-27033, October 31, 1969, 30 SCRA 187; Unimasters Conglomeration, Inc. v. Court of Appeals, G. R. No. 119657, February 7, 1997, 267 SCRA 759.

Qualifying or restrictive words are 'must,' 'only,' and 'exclusively' as cited in Philippine Banking Corporation v. Tensuan,84 'solely,' 'in no other court,' 'particularly,' nowhere else but except', etc.85

(d) Waiver by Failure to File Motion to Dismiss Based on Improper Venue:

Improper venue may now be pleaded as an affirmative defense in the answer. 86 Improper venue may only be deemed waived if it is not pleaded either in a motion to dismiss or in the answer.87

2.4 Plaintiff Has No Legal Capacity to Sue

(a) Meaning

Legal capacity to sue means that a party is not suffering from any disability such as minority, insanity, covertures, lack of juridical personality, incompetence, civil interdiction88 or does not have the character or representation which he claims89 or with respect to foreign corporation, that it is doing business in the Philippines with a license.90

(b) Decisional Rules

In Pilipinas Shell Petroleum Corporation v. Dumlao, 91 the Supreme Court held that a person who has no interest in the estate of a deceased person has no legal capacity to file a petition for letters of administration. With respect to foreign corporations, the qualifying circumstances of plaintiff’s capacity to sue being an essential element must be affirmatively pleaded.92 The qualifying circumstance is an essential part of the element of the plaintiff’s capacity to sue.93 The complaint must either allege that it is doing business in the Philippines with a license or that it is a foreign corporation not engaged in business and that it is suing in an isolated transaction.

2.5 Litis Pendentia

(a) Rationale of the Rule: Like res judicata as a doctrine, litis pendentia is a sanction of public policy against multiplicity of suits.94 The principle upon which a plea of another action pending is sustained is that the latter action is deemed unnecessary and vexatious.95 8

8 8 8 8 8 9 9 9 9

9 9

G. R. No. 106920, December 10, 1993, 228 SCRA 385; Bautista v. Borja, G. R. No. 20600, October 28, 1966, 18 SCRA 474. 5 Unimasters Conglomeration, Inc. v. Court of Appeals, supra, note 83. 6 Rules of Court, Rule 1, Sec. 6. 7 Rules of Court, Rule 9, Sec. 1. 8 Calano v. Cruz, 91 Phil. 247 [1952]. 9 1 Moran 174-177 [1979]. 0 Corporation Code, Sec. 133. 1 G.R. No. 44888, February 7, 1992, 206 SCRA 40. 2 Leviton Industries v. Salvadro, No. L-40163, June 19, 1982, 114 SCRA 420. 3 Bulakhidas v. Navarro, No. L-49695, April 7, 1986, 142 SCRA 4; Antam Consolidated, Inc. v. Court of Appeals, No. L61523, July 31, 1986, 143 SCRA 288. 4 Investors’ Finance Corporation v. Ebarle, No. L-70640, June 29, 1988, 163 SCRA 60. 5 Victronics Computers, Inc. v. Logarta, G. R. No. 104019, January 25, 1993, 217 SCRA 517; Arceo v. Oliveros, No. L4

(b) Requisites of Litis Pendentia: To prevail as a ground for a motion to dismiss, the following elements must be present:

b.1 Identity of parties, or at least such as representing the same interest in both actions;

b.2 Identity of rights asserted and prayed for, the relief being founded on the same facts; and

b.3 The identity on the preceding particulars should be such that any judgment which may be rendered on the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.96

(c) Which of the Two Cases Should be Dismissed?

The Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide that there is a pending action, not a pending prior action. Given, therefore, the pendency of two actions, the following are the relevant considerations in determining which action should be dismissed:

c.1 the date of the filing, with preference generally given to the first action filed to be retained;

c.2 whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal; and

c.3 whether the action is the appropriate vehicle for litigating the issues between the parties.97

2.6 Res Judicata

(a) Statement of the Doctrine

The doctrine of res judicata is a rule which pervades every well-regulated system of jurisprudence and is founded upon two grounds embodied in various maxims of the common law, namely:

a.1 public policy and necessity which make it to the interest of the state that there should be an end to litigation – interest reipublicae ut sit finis litium, and

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38257, January 31, 1985, 134 SCRA 308; Andresons Groups, Inc. v. Court of Appeals, G. R. No. 114928, January 21, 1997, 266 SCRA 423. 6 Lamin Ents. v. Lagamon, No. L-57250, October 30, 1981, 108 SCRA 740; FEU-Dr. Nicanor Reyes Medical Foundation v. Trajano, No. L-76273, July 31, 1987, 152 SCRA 725; Suntay v. Aquiluz, G. R. No. L-28883, June 3, 1992, 209 SCRA 500; Valencia v. Court of Appeals, G. R. No. 111401, October 17, 1996, 263 SCRA 275; Cokaliong Shipping Lines, Inc. v. Amin, G. R. No. 112233, July 31, 1996, 260 SCRA 122. 7 Allied Banking Corporation v. Court of Appeals, G. R. No. 95223, July 26, 1996, 259 SCRA 371.

a.2 the hardship on the individual that he should be vexed twice for the same cause – nemo debet bis vexari et eadem causa. 98

(b) The requisites of res judicata are the following:

b.1 the former judgment or order must be final;

b.2 it must be a judgment or order on the merits;

b.3 the court which rendered it had jurisdiction over the subject matter and the parties; and

b.4 there must be, between the first and second actions, identity of parties, of subject matter and of cause of action.99

(c) Two Aspects of Res Judicata

c.1 Bar by Former Judgment – when, between the first case where the judgment was rendered, and the second case where the judgment is invoked, there is identity of parties, subject matter and cause of action.

c.2 Conclusiveness of Judgment – when there is an identity of parties but not cause of action, the judgment being conclusive in the second case only as to those matters actually and directly controverted and determined, and not as to matters invoked thereon.100

(d) Decisional Rules

A judicial compromise has the effect of res judicata and is immediately executory and not appealable.101 The ultimate test in ascertaining the identity of causes of action is said to be to look into whether or not the same evidence fully supports and establishes both the present cause of action and the former cause of action. 102 Only substantial, and not absolute, identity of parties is required for res judicata.103

2.6 Statute of Limitation (Prescription of Action)

An action prescribes by the lapse of time fixed in the Civil Code (Articles 1139 to 1155).

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Linzag v. Court of Appeals, G. R. No. 122181, June 26, 1998, 291 SCRA 304. Casil v. Court of Appeals, G. R. No. 121534, January 28, 1998, 285 SCRA 204. 00 Islamic Directorate of the Philippines v. Court of Appeals, G. R. No. 117897, May 14, 1997, 272 SCRA 454. 01 Republic v. Court of Appeals, G. R. No. 110020, September 25, 1998, 296 SCRA 171. 02 Bachrach Corporation v. Court of Appeals, G. R. No. 128349, September 25, 1998, 296 SCRA 487. 03 Sempio v. Court of Appeals, G. R. No. 124326, January 22, 1998, 284 SCRA 580.

ART. 1139. Actions prescribe by the mere lapse of time fixed by law.

ART. 1140. Actions to recover movables shall prescribe eight years from the time the possession thereof is lost, unless the possessor has acquired the ownership by prescription for a less period, according to article 1132, and without prejudice to the provisions of articles 559, 1505, and 1133.

ART. 1141. Real actions over immovables prescribe after thirty years.

This provision is without prejudice to what is established for the acquisition of ownership and other real rights by prescription.

ART 1142. A mortgage action prescribes after ten years.

ART 1143. The following rights, among others specified elsewhere in this Code, are not extinguished by prescription:

1. To demand a right of way, regulated in article 649;

2. To bring an action to abate a public or private nuisance.

ART. 1144. The following actions must be brought within ten years from the time the right of action accrues:

1. Upon a written contract;

2. Upon an obligation created by law;

3. Upon a judgment.

ART. 1145. The following actions must be commenced within six years:

1. Upon an oral contract;

2. Upon a quasi-contract.

ART. 1146. The following actions must be instituted within four years:

1. Upon an injury to the rights of the plaintiff;

2. Upon quasi-delict.

However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year.104

Art. 1147. The following actions must be filed within one year:

1. For forcible entry and detainer;

2. For defamation.

ART. 1148. The limitations of action mentioned in articles 1140 to 1142, and 1144 to 1147 are without prejudice to those specified in other parts of this Code, in the Code of Commerce and in special laws.

ART. 1149. All other actions whose periods are not fixed in this Code or in other laws must be brought within five years from the time the right of action accrues.

ART. 1150. The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought.

ART. 1151. The time for the prescription of actions which have for their object the enforcement of obligations to pay principal with interest or annuity runs from the last payment of the annuity or of the interest.

ART. 1152. The period for prescription of actions to demand the fulfillment of obligation declared by a judgment commences from the time the judgment became final.

ART. 1153. The period for prescription of actions to demand accounting runs from the day the persons who should render the same cease in their functions.

The period for the action arising from the result of the accounting runs from the date when said result was recognized by agreement of the interested parties.

ART. 1154. The period during which the obligee was prevented by a fortuitous event from enforcing his right is not reckoned against him.

ART. 1155. The prescription of actions is interrupted when they are filed before the court, when there is a written extrajudicial demand by the creditors, and when there is any written acknowledgment of the debt by the debtor.

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As amended by PD No. 1755, December 24, 1980.

(a) Decisional Rules

Prescription and estoppel cannot be invoked against the State.105 If the defense of prescription has not been raised in a motion to dismiss or an answer, if the plaintiff’s complaint or evidence shows that the action had prescribed, the action shall be dismissed.106 Prescription cannot be invoked as a ground if the contract is alleged to be void ab initio107 but where prescription depends on whether the contract is void or voidable, there must be a hearing.108

2.7 Pleading Asserting Claim States No Cause of Action

(a) Elements of a Cause of Action

A cause of action exists if the following elements are present, namely:

a.1 a right in favor of the plaintiff by whatever means and under whatever law it arises or is created;

a.2 an obligation on the part of the named defendant to respect or not to violate such right; and

a.3 an act or omission on the part of such defendant violative 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.109

(b) Hypothetical Admission of Allegations of Fact in the Complaint

It is axiomatic that a defendant moving to dismiss a complaint on this ground is regarded as having admitted all the averments thereof, at least hypothetically, the test of the sufficiency of the facts found in a petition, as constituting a cause of action, being whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer thereof. In determining the sufficiency of the statements in the complaint as setting forth a cause of action, only those statements in the complaint, to repeat, may properly be considered, and it is error for the Court to take cognizance of external facts, or hold a preliminary hearing to determine their existence.110

(c) The following Allegations are not Deemed Hypothetically Admitted: 1

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Delos Reyes v. Court of Appeals, G. R. No. 121468, January 27, 1998, 285 SCRA 81. Rules of Court, Rule 9, Sec. 1; Ferrer v. Ericta, No- L-41767, August 23, 1978, 84 SCRA 705; Aznar v. Bernad, No. L81190, May 9, 1988, 161 SCRA 276. 07 Ruiz v. Court of Appeals, No. L-29213, October 21, 1977, 79 SCRA 525; Castillo v. Heirs of Vicente Madrigal, G. R. No. 62650, June 27, 1991, 198 SCRA 556. 08 Landayan v. Bacani, No. L-30455, September 30, 1982, 117 SCRA 117. 09 Dulay v. Court of Appeals, G. R. No. 108017, April 3, 1995, 243 SCRA 220 cited in Parañaque Kings Enterprises, Inc. v. Court of Appeals, G. R. No. 11538, February 16, 1997. 10 D. C. Crystal, Inc. v. Laya, G.R. No. 53597, February 28, 1989, 170 SCRA 734; Del Bros. v. Court of Appeals, G. R. No. 87678, June 16, 1992, 210 SCRA 33; Rava Development Corporation v. Court of Appeals, G. R. No. 96825, July 3, 1992, 211 SCRA 144; Merill Lynch Futures, Inc. v. Court of Appeals, G. R. No. 97816, July 24, 1992, 211 SCRA 824.

c.1 allegations of which the court will take judicial notice are not true; neither allegations of conclusions nor allegations of fact the falsity of which the court may take judicial notice are deemed admitted;111

c.2 legally impossible facts;

c.3 facts inadmissible in evidence; and

c.4 facts which appear by record or document included in the pleadings to be unfounded;112

c.5 When other facts may be considered;

c.6 Where the motion to dismiss was heard with the submission of evidence or if documentary evidence admitted by stipulation discloses facts sufficient to defeat the claim 113 or admitted during hearing on preliminary injunction,114 the facts therein adduced may be considered;

c.7 All documents attached to a complaint, the due execution and genuineness of which are not denied under oath by the defendant, must be considered as part of the complaint without need of introducing evidence thereon;115

c.8 In resolving a motion to dismiss, every court must take cognizance of decisions the Supreme Court has rendered because they are proper subjects of mandatory judicial notice as provided by Section 1 of Rule 129 of the Rules of Court. The said decisions, more importantly, 'form part of the legal system,' and failure of any court to apply them shall constitute an abdication of its duty to resolve a dispute in accordance with law, and shall be a ground for administrative action against an inferior court magistrate;116

c.9 Exhaustion of Administrative Remedies. Where plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action.117

(d) Claim or Demand Set Forth in the Plaintiff’s Pleading Has Been Paid, Waived, Abandoned or Otherwise Extinguished

ART. 1231. Obligations are extinguished: 1

1 1 1 1 1 1

Mathay v. Consolidated Bank and Trust Company, No. L-23136, August 26, 1974, 58 SCRA 560; U. Bañez Electric Light Company v. Abra Electric Cooperative, Inc., No. L-59480, December 8, 1982, 119 SCRA 90; Dalandan v. Julio, No. L-19101, February 29, 1964, 10 SCRA 400; Marcopper Mining Corporation v. Garcia, No. L-55935, July 30, 1986, 143 SCRA 178. 12 Tan v. Director of Forestry, No. L-24548, October 27, 1983, 125 SCRA 302. 13 Ibid. 14 Santiago v. Pioneer Savings and Loan Bank, G. R. No. 77502, January 15, 1988, 157 SCRA 100. 15 Asia Banking Corporation v. Walter E. Olsen and Co., 48 Phil. 529 [1925]. 16 Peltan Development, Inc. v. Court of Appeals, G. R. No. 117029, March 29, 1997, 270 SCRA 82. 17 Pineda v. Court of First Instance of Davao, 111 Phil. 643 [1961] 11

(i) by payment or performance;

(ii) by the loss of the thing due;

(iii) by the condonation or remission of the debt;

(iv) by the confusion or merger of rights of debtor and creditor;

(v) by compensation; and

(vi) by novation.

Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code.

(e) Statute of Frauds

(f) The Civil Code enumerates in Art. 1403 the contracts falling under the Statute of Frauds.

ART. 1403. The following contracts are unenforceable, unless they are ratified:

1. Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers;

2. Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases, an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or secondary evidence of its contents:

a. An agreement that by its terms is not to be performed within a year from the making thereof;

b. An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;

c. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;

d. A representation as to the credit of a third person.

3. Those where both parties are incapable of giving consent to a contract.

(g) Some Decisional Rules

Absence of compliance with the Statute of Frauds may be proved in a motion to dismiss.118 Plaintiff must produce all notes or memorandum during the hearing of the motion to dismiss. A motion invoking the Statute of Frauds may be filed even if the same does not appear on the face of the complaint. That the claim is unenforceable under the Statute of Frauds may be shown and determined during the hearing of the motion to dismiss on said ground.119 Under Sec. 2, Chapter 6 of RA 8792 (E-Commerce Law) where the law requires a writing or document, that requirement is met by an electronic document which maintains its integrity and reliability and can be authenticated so as to be useable for subsequent reference.

The Civil Code on cases where compromise is not allowed:

Art. 2035. No compromise upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;

(3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts;

(6) Future legitime.

3. Resolution of the 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. 1

18

1

19

Yuvienco v. Dacuycuy, No. L-55048, May 27, 1981, 104 SCRA 668. Ibid.

In every case, the resolution shall state clearly and distinctly the reasons therefor.120

4. JOINDER OF ISSUES 1. Filing of Answer

1. Time to Plead

1.1 Answer to Complaint and Third-Party (Fourth-Party, etc.) Complaint – fifteen (15) days after service of summons, unless a different period is fixed by the court.121

However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant shall file his answer within the balance of the period provided 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.

1.2 Answer of a defendant foreign private juridical entity

1.2.1 when summons is served upon a resident agent – fifteen (15) days after service of summons.122

1.2.2 when summons is served on the government official designated to receive the same – thirty (30) days from receipt by the latter of the summons.123

1.3 Answer to Amended Complaint, Amended Counterclaim, Amended Cross-claim and Amended Third-Party (Fourth-Party, etc.) Complaint:

1.3.1 amended complaint was filed as a matter of right (Rule 10, Section 2) – fifteen (15) days after being served with a copy thereof;124 and

1.3.2 amended complaint was filed with leave of court (Rule 10, Section 3) – ten (10) days from notice of order admitting the amended complaint.125

1.4 Answer to counterclaim or cross-claim - within ten (10) days from service.126 1

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1

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1 1 1 1

Rules of Court, Rule 16, Sec. 3.

Rules of Court, Rule 11, Secs. 1 and 5. Rules of Court, Rule 14, Sec. 12. 23 Rules of Court, Rule 11, Sec. 2. 24 Rules of Court, Rule 11, Sec. 3. 25 Ibid. 26 Rules of Court, Rule 11, Sec. 4.

1.5 Reply - within ten (10) days from service of the pleading responded to.127

1.6 Answer to supplemental complaint - within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court.128

1.7 Answer to Complaint-in-Intervention - within fifteen (15) days from notice of the order admitting the same unless a different period is fixed by the court.129

2. Strict Observance of the Period

While the rules are liberally construed, the provisions on reglementary periods are strictly applied for they are deemed indispensable to the prevention of needless delays and necessary to the orderly and speedy discharge of judicial business.130

Strict compliance with said periods is mandatory and imperative.131

3. Effect of Failure to Plead (Rule 9)

Sec. 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.

2. Counterclaim 1. Definition

A counterclaim is any claim which a defending party may have against an opposing party.132

There are two (2) kinds, the compulsory and the permissive. 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 counterclaim may be considered compulsory regardless of the amount.133 1

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1 1

1 1 1

Ibid., Sec. 6. Ibid., Sec. 7. 29 Rules of Court, Rule 19, Sec. 7. 30 Alvero v. De La Rosa, 76 Phil. 428 [1946]; Valdez v. Ocumen, 106 Phil. 929 [1960]; Mangali v. Court of Appeals, L47296, August 21, 1980, 99 SCRA 236; Legaspi-Santos v. Court of Appeals, G. R. No. 60577, October 11, 1983, 125 SCRA 22. 31 FJR Garments Industries v. Court of Appeals, L-49320, June 29, 1984, 130 SCRA 216. 32 Rules of Court, Rule 6, Sec. 6. 33 Ibid., Sec. 7.

A counterclaim which is not compulsory is a permissive counterclaim.

2. Difference Between Permissive and Compulsory Counterclaim

In a permissive counterclaim, the docket and other lawful fees should be paid and the same should be accompanied by a certificate against forum shopping and certificate to file action issued by the proper Lupon Tagapamayapa. It should also be answered by the claiming party. It is not barred even if not set up in the action.

In a compulsory counterclaim, no docket fee is paid and the certificates mentioned above are not required. 134 If it is not raised in the answer, it shall be barred.135

A compulsory counterclaim that merely reiterates special defenses which are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint need not be answered.136 However, a compulsory counterclaim which raises issues not covered by the complaint should be answered.137

If the counterclaim is based on an actionable document attached to or copied in the counterclaim, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party specifically denies under oath its genuineness and due execution.138

3. Cognate Rules

3.1 A cross-claim which is not set up in the action is barred.139

3.2 The dismissal of the complaint carries with it the dismissal of the cross-claim which is purely defensive, but not a cross-claim seeking affirmative relief.140 It does not also carry with it a dismissal of the counterclaim that has been pleaded by the defendant prior to service to him of the notice of dismissal, 141 or to a dismissal due to the fault of the plaintiff.142

3.3 A party cannot, in his reply, amend his cause of action nor introduce therein new or additional causes of action.143

3.4 A third-party complaint need not arise out of or be entirely dependent on the main action as it suffices that the 1

34

1

35

1

1 1 1 1 1 1 1

Santo Tomas University v. Surla, G. R. No. 129718, August 17, 1998, 294 SCRA 382. Rules of Court, Rule 9, Sec. 2. 36 Lama v. Apacible 79 Phil. 68 [1947]; Navarro v. Bello, 102 Phil. 1019 [1958]; Gojo v Goyala, G. R. No. 26768, October 30, 1970, 35 SCRA 557. 37 Feria, Annotated 1997 Rules of Court, 41. 38 Rules of Court, Rule 8, Sec. 8. 39 Rules of Court, Rule 9, Sec. 2. 40 Torres v. Court of Appeals, L-25889, January 12, 1973, 49 SCRA 67. 41 Rules of Court, Rule 17, Sec. 2. 42 Ibid., Sec. 3. 43 Anaya v. Palaroan, L-27930, November 26, 1970, 36 SCRA 97.

former be only "in respect" of the claim of the third-party plaintiff’s opponent.144

5. PRE-TRIAL 1. Concept of Pre-Trial

1. Concept of Pre-Trial

Pre-trial is a procedural device by which the Court is called upon after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action, such as the number of witnesses the parties intend to present, the tenor or character of their testimonies, their documentary evidence, the nature and purpose of each of them, and the number of trial dates that each will need to put on his case. One of the objectives of pre-trial procedure is to take the trial of cases out of the realm of surprise and maneuvering. 145 Pretrial also lays down the foundation and structural framework of another concept, that is the continuous trial system.146

Pre-trial is mandatory but not jurisdictional.147

2. Purpose of Pre-Trial

The purpose of the pre-trial is for the court to 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; 1

44

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45

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Pascual v. Bautista, L-21644, May 29, 1970, 33 SCRA 301. Permanent Concrete Products, Inc. v. Teodoro, G. R. No. 29776, November 29, 1968, 26 SCRA 332. 46 Circular No. 1-89; Administrative Circular No. 4, September 4, 1988. 47 Martinez v. de la Merced, G. R. No. 82309, June 20, 1989, 174 SCRA 182.

(g) the propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore 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.148

3. Administrative Circular No. 3-99 (January 15, 1999) on Pre-Trial

A. Pre-Trial

1. Within five (5) days after the last pleading joining the issues has been filed and served, the plaintiff must move ex parte that the case be set for pre-trial conference.

2. The parties shall submit, at least three (3) days before the conference, pre-trial briefs containing the following:

a. A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof, or to submit the case to any of the alternative modes of dispute resolution;

b. A summary of admitted facts and proposed stipulation of facts;

c. The issues to be tried or resolved;

d. The number and names of the witnesses to be presented, and abstract of their testimonies, and the approximate number of hours that will be required by the parties for the presentation of their respective evidence;

e. Copies of all documents intended to be presented with a statement of the purposes of their offer;

f. A manifestation of their having availed or their intention to avail themselves of any discovery procedure, or of the need of referral of any issues to commissioners;

g. Applicable laws and jurisprudence;

h. The available trial dates of counsel for complete presentation of evidence, which must be within a period of three months from the first day of trial. 1

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Rules of Court, Rule 18, Sec. 2.

3. Before the pre-trial conference, the judge must study the pleadings of every case, and determine the issues thereof and the respective positions of the parties thereon to enable him to intelligently steer the parties toward a possible amicable settlement of the case, or, at the very least, to help reduce and limit the issues.

The judge should avoid the undesirable practice of terminating the pre-trial as soon as the parties have indicated that they cannot settle the controversy. He must be mindful that there are other important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case.

4. At the pre-trial conference, the following shall be done:

a. The judge with all tact, patience and impartiality shall endeavor to persuade the parties to arrive at a settlement of the dispute; if no amicable settlement is reached, then he must effectively direct the parties toward the achievement of the other objectives or goals of pre-trial set forth in Section 2, Rule 18, 1997 Rules of Civil Procedure.

b. If warranted by the disclosures at the pre-trial, the judge may either forthwith dismiss the action, or determine the propriety of rendering a judgment on the pleadings or a summary judgment.

c. The judge shall define the factual issues arising from the pleadings and endeavor to cull the material issues.

d. If only legal issues are presented, the judge shall require the parties to submit their respective memoranda and thereafter render judgment.

e. If trial is necessary, the judge shall fix the trial dates required to complete presentation of evidence by both parties within ninety (90) days from the date of initial hearing.

5. After the pre-trial conference, the judge should not fail to prepare and issue the requisite pre-trial order, which shall embody the matters mentioned in Section 7, Rule 18 of the 1997 Rules of Civil Procedure.

6. Failure of the plaintiff to appear at the pre-trial shall be a cause for dismissal of the action. A similar failure of the defendant shall be a cause to allow the plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof.

7. Failure to file pre-trial briefs shall have the same effect as failure to appear at the pre-trial.

The judge should encourage the effective use of pre-trial discovery procedures.149

4. The Pre-Trial Order

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49

Administrative Circular No. 1 dated 28 January 1988.

Where the case proceeded to trial with the petitioners actively participating therein without raising their objections to the pre-trial, they are bound by the stipulations at the pre-trial.150

Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised, and the determination of issues at a pre-trial conference bars the consideration of other questions on appeal.151

4.1 Exceptions

4.1.1 To prevent manifest injustice;152

4.1.2 Issues that are impliedly included or necessarily connected to the expressly defined issues and denser parts of the pre-trial order.153

4.1.3 Issues not included in the pre-trial order but were tried expressly or impliedly by the parties.154

6. TRIAL (Rule 30)

A. Administrative Circular No. 3-99, Jan. 15, 1999

To insure speedy disposition of cases, the following guidelines must be faithfully observed:

I. The session hours of all Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts shall be from 8:30 A. M. to noon and from 2:00 P. M. to 4:30 P. M. from Monday to Friday. The hours in the morning shall be devoted to the conduct of trial, while the hours in the afternoon shall be utilized for (1) the conduct of pre-trial conferences; (2) writing of decisions, resolutions, or orders; or (3) the continuation of trial on the merits, whenever rendered necessary, as may be required by the Rules of Court, statutes, or circulars in specified cases.

However, in multi-sala courts in places where there are few practicing lawyers, the schedule may be modified upon request of the Integrated Bar of the Philippines such that one-half of the branches may hold their trial in the morning and the other half in the afternoon.

Except those requiring immediate action, all motions should be scheduled for hearing on Friday afternoons, or if 1

1 1 1 1

Macaraeg v. Court of Appeals, G. R. No. 48008, January 20, 1989, 169 SCRA 259 citing Lucenta v. Court of First Instance of Bukidnon, G. R. No. L-39789, June 20, 1988, 162 SCRA 197. 51 Son v. Son, G. R. No. 73077, December 29, 1996, 251 SCRA 556. 52 Sese v. Intermediate Appellate Court, No. L-66186, July 31, 1987, 152 SCRA 585. 53 Velasco v. Apostol, G. R. No. 44588, May 9, 1989, 173 SCRA 228 cited in Son v. Son, supra, note 151. 54 Son v. Son, supra, note 151. 50

Friday is a non-working day, in the afternoon of the next business day. The unauthorized practice of some judges of entertaining motions or setting them for hearing on any other day or time must be immediately stopped.

II. Judges must be punctual at all times.

III. The Clerk of Court, under the direct supervision of the Judge, must comply with Rule 20 of the 1997 Rules of Civil Procedure regarding the calendar of cases.

IV. There should be strict adherence to the policy on avoiding postponements and needless delay.

Sections 2, 3 and 4 of Rule 30, 1997 Rules on Civil Procedure on adjournments and postponements and on the requisites of a motion to postpone trial for absence of evidence or for illness of a party or counsel should be faithfully observed.

Lawyers as officers of the court, are enjoined to cooperate with judges to ensure swift disposition of cases.

V. The mandatory continuous trial system in civil cases contemplated in Administrative Circular No. 4 dated 22 September 1988, and the guidelines provided for in Circular No. 1-89, dated 19 January 1989, must be effectively implemented. For expediency, these guidelines in civil cases are hereunder restated with modifications, taking into account the relevant provisions of the 1997 Rules of Civil Procedure:

B. Trial

1. Unless the docket of the court requires otherwise, not more than four (4) cases shall be scheduled for trial daily.

2. The Presiding Judge shall make arrangements with the prosecutor and the Public Attorney’s Office (PAO) so that a relief prosecutor and a PAO attorney are always available in case the regular prosecutor or PAO attorneys are absent.

3. Contingency measures must likewise be taken for any unexpected absence of the stenographer and other support staff assisting in the trial.

4. The issuance and service of subpoena shall be done in accordance with Administrative Circular No. 4 dated 22 September 1988.

5. The judge shall conduct trial with utmost dispatch, with judicious exercise of the court’s power to control trial proceedings to avoid delay.

6. The judge must take notes of the material and relevant testimonies of witnesses to facilitate his decision-

making.

7. The trial shall be terminated within ninety (90) days from initial hearing. Appropriate disciplinary sanctions may be imposed on the judge and the lawyers for failure to comply with the requirement due to causes attributable to them.

8. Each party is bound to complete the presentation of his evidence within the trial dates assigned to him. After the lapse of said dates, the party is deemed to have completed the presentation of evidence. However, upon verified motion based on compelling reasons, the judge may allow a party additional trial dates in the afternoon; provided that said extension will not go beyond the three-month limit computed from the first trial date except when authorized in writing by the Court Administrator, Supreme Court.

I. All trial judges must strictly comply with Circular No. 38-98, entitled 'Implementing the Provisions of Republic Act No. 8493' ('An Act to Ensure a Speedy Trial of All Cases Before the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, Appropriating Funds Therefore, and for Other Purposes') issued by the Honorable Chief Justice Andres R. Narvasa on 15 September 1998.

II.

1. As a constant reminder of what cases must be decided or resolved, the judge must keep a calendar of cases submitted for decision, noting therein the exact day, month and year when the 90-day period is to expire. As soon as a case is submitted for decision, it must be noted in the calendar of the judge; moreover, the records shall be duly collated with the exhibits and transcripts of stenographic notes, as well as the trial notes of the judge, and placed in the judge’s chamber.

2. In criminal cases, the judge will do well to announce in open court at the termination of the trial the date of the promulgation of the decision, which should be set within 90 days from the submission of the case for decision.

3. All Judges must scrupulously observe the period prescribed in Section 15, Article VIII of the Constitution.

This Circular shall take effect on February 1,1999, and the Office of the Court Administrator shall ensure faithful compliance therewith. City of Manila, 15 January 1999. 2. Some Rules

1. The order of trial stated above is followed in ordinarily contested cases. However, if the defendant in his answer admits the obligation alleged in the complaint but raises special defenses, then the plaintiff is relieved of the duty to present evidence in chief and so the defendant should start the proceeding by presenting his evidence to support his special defenses.155

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Yu v. Mapayo, No. L-29742, March 29, 1972, 44 SCRA 163.

2. When Case Deemed Submitted for Decision in Trial Court

Under Administrative Circular No. 28 dated July 3,1989:

xxx

(3) A case is considered submitted for decision upon the admission of the evidence of the parties at the termination of the trial. The ninety (90) day period for deciding the case shall commence to run from submission of the case for decision without memoranda; in case the Court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the last memorandum or the expiration of the period to do so, whichever is earlier. Lack of transcript of stenographic notes shall not be a valid reason to interrupt or suspend the period for deciding the case unless the case was previously heard by another judge not the deciding judge in which case the latter shall have the full period of ninety (90) days from the completion of the transcripts within which to decide the same.

(4) The court may grant extension of time to file memoranda, but the ninety (90) days period for deciding the case shall not be interrupted thereby.

(5) The foregoing rules shall not apply to Special Criminal Courts under Circular 20 dated August 7, 1987, and to cases covered by the Rule on Summary Procedure in which memoranda are prohibited.

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Under Rule 30, Section 5(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.

As a general rule, no additional evidence may be presented at the rebuttal stage. Subject to the discretion of the court, additional evidence may be submitted:

(1) if it is merely discovered;

(2) omitted through mistake or inadvertence; or

(3) when the purpose is to correct evidence previously offered.156

Under Administrative Matter No. 00-2-01-SC amending the Rule 141 of the Rules of Court on Legal Fees, it is provided in Sec. 2(b) that a fee shall be paid for motions for postponements, to wit:

1

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Lopez v. Liboro, 81 Phil. 429 [1948].

For motions for postponement after completion of the pre-trial stage, one hundred (Php100) pesos for the first, and an additional fifty (Php50) pesos for every postponement thereafter based on that for the immediately preceding motion: Provided, however, that no fee shall be imposed when the motion is found to be based on justifiable and compelling reason.

7. ADJUDICATION (Rule 36) 1. Concept and Requirements

Adjudication is the rendition of a judgment or final order which disposes of the case on the merits.

Under the Rules of Civil Procedure, judgment is used in its generic term and therefore synonymous to decision. 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 court.157 2. Kinds of Judgment and Definitions 1. Without Reception of Evidence

1.1 Judgment on the Pleading

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.158

1.2 Summary Judgment

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.159

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.160

2. With Partial Reception of Evidence

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Rules of Court, Rule 36, Sec. 1. Rules of Court, Rule 34, Sec. 1. 59 Rules of Court, Rule 35, Sec. 1. 60 Ibid., Sec. 2.

2.1 Judgment by Default

If the defending party fails to answer within the time allowed therefore, 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.161

2.2 Judgment on 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.162

Notes: A demurrer to evidence is differentiated from a motion to dismiss in that the former can be availed of only after the presentation of plaintiff’s evidence while the latter is instituted as a general rule before a responsive pleading is filed.

When the motion for a demurrer to evidence is granted, the judgment of the court is considered on the merits and so it has to comply with Rule 36, Section 1, regarding the requirement that judgment should clearly and distinctly state the facts and the law on which it is based. If the motion is denied, the order is merely interlocutory.163

3. Cases on Summary Judgment

1. The test for the propriety of a motion for summary judgment is whether the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the findings that, as a matter of law, there is no defense to the action or the claim is clearly meritorious.164

2. Summary judgment may include a determination of the right to damages but not the amount of damages. 165 The court cannot also impose attorney’s fees in a summary judgment in the absence of proof as to the amount thereof.166

3. Mere denials, unaccompanied by any fact which would be admissible in evidence at a hearing, are not sufficient to raise a genuine issue of fact sufficient to destroy a motion for summary judgment even though such issue was formally raised by the pleadings.167 Where all the facts are within the judicial knowledge of the court, summary judgment may be granted as a matter of law.168 1

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1 1 1 1 1 1

Rules of Court, Rule 9, Sec. 3. Rules of Court, Rule 33, Sec. 1. 63 Nepomuceno v. Commission on Elections, G. R. No. 60601, December 29, 1983, 126 SCRA 472. 64 Estrada v. Consolacion, No. L-40948, June 29, 1976, 71 SCRA 523. 65 Jugador v. de Vera, 94 Phil. 704 [1954]. 66 Warner, Barnes & Co., Ltd. v. Luzon Surety Co., Inc., 95 Phil. 924 [1954]. 67 Fletcher v. Krise, 4 Fed. Rules Service, 765, March 3, 1941. 68 Fletcher v. Evening Newspaper Co., 3 Fed. Rules Service, 539, June 28, 1940; Miranda v. Malate Garage & Taxicab, Inc., 99 Phil. 670 [1956].

4. Courts are without discretion to deny a motion for summary judgment where there is no genuine issue as to a material fact. Summary judgment is available even if the pleadings ostensibly show genuine issue which by depositions or affidavits are shown not to be genuine.169

5. Distinction between summary proceedings under Rule 34 (Judgment on the pleadings) and the summary proceedings under Rule 35 (Summary Judgment)

A different rationale operates in the latter for it arises out of facts already established or admitted during the pretrial held beforehand, unlike the former where the judgment merely relies on the merits of the movant’s allegations.170

6. Discretion of Court To Render Judgment on the Pleadings

Under the Rules, if there is no controverted matter in the case after the answer is filed, the trial court has the discretion to grant a motion for judgment on the pleadings filed by a party. Where there are actual issues raised in the answer, such as one involving damages, which require the presentation of evidence and assessment thereof by the trial court, it is improper for a judge to render judgment based on the pleadings alone.171

7. A partial summary judgment may be rendered,172 but the same is interlocutory and not appealable.173

4. Ordinary Judgment

1. No judge should decline to render judgment by reason of the silence, obscurity, or insufficiency of the law.174

2. The court is not required to state in its decision all the facts found in the records. It is enough that the court states the facts and law on which its decision is based.175

Trial courts should not, however, merely reproduce everything testified to by the witnesses no matter how unimportant and immaterial it may be, even if this might lighten their work. By such indolent process, they only complicate and lengthen their decisions, beclouding and possibly misreading the real issues in their tiresome narration of the facts, including even those without bearing in the case. Judges should make an effort to sift the record and relieve it of all inconsequential matters, to give them a clearer view of how the real question is to be resolved and a better idea of how this resolution should be done.176 1

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Diman v. Alumbres, G. R. No. 131466, November 27, 1998, 299 SCRA 459. Velasquez v. Court of Appeals, G. R. No. 124049, June 30, 1999, 309 SCRA 539. 71 Spouses Hontiveros v. Regional Trial Court of Iloilo, Br. 25, G. R. No. 125465, June 29, 1999, 309 SCRA 340. 72 Rules of Court, Rule 35, Sec. 4. 73 Guevarra v. Court of Appeals, Nos. L-49017 and L-49024, August 30, 1983, 124 SCRA 297. 74 Civil Code, Art. 9. 75 People v. Derpo, Nos. L-41040 and 43908-10, December 14, 1988, 168 SCRA 447. 76 People v. Molina, G. R. No. 70008, April 26, 1990, 184 SCRA 597.

2.1 Need to Particularize Facts

Without the concrete relation or statement in the judgment of the facts alleged and proved at the trial, it is not possible to pass upon and determine the issue raised in litigation, inasmuch as when the facts held to be proved are not set forth in a judicial controversy, it is impossible to administer justice, to apply the law to the points argued, or to uphold the rights of the litigant who has the law on his side.

It is not sufficient that the court or trial judge take into account the facts brought out in an action the circumstances of each question raised, and the nature and conditions of the proofs furnished by the parties. He must also set out in his decision the facts alleged by the contending parties which he finds to have been proven, the conclusions deduced therefrom and the opinion he has formed on the issues raised. Only then can he intelligently set forth the legal grounds and considerations proper in his opinion for the due determination of the case.177

2.2 Reason for Award of Attorney's Fees Must be Stated in the Body of the Decision

The exercise of judicial discretion in the award of attorney's fee under Article 2208 (ii) of the New Civil Code demands a factual, legal, and equitable justification. Without such justification, the award is a conclusion without a premise, its basis being improperly left to speculation and conjecture.178

3. The case should be decided in its totality, resolving all interlocutory issues in order to render justice to all concerned and to end litigation once and for all.179

4. To be binding, a judgment must be duly signed and promulgated during the incumbency of the judge who signed it.180 However, it is not unusual for a judge who did not try a case to decide on the basis of the records for the trial judge might have died, resigned, retired, or transferred.181

5. The 90-day period to decide a case shall be reckoned with from the date said case is submitted for decision despite the non-availability of the stenographic notes.182 In the same manner, the judge should decide the case even if the parties failed to submit memoranda within the given periods.183

8. REMEDIES AGAINST JUDGMENT AND FINAL ORDERS

1. Kinds of Remedies

1

77

1

78

1 1 1 1 1

People v. Escober, No. L-69564, January 29, 1988, 157 SCRA 541. Mirasol v. dela Cruz, No. L-32552, July 31, 1978, 84 SCRA 337. 79 National Housing Authority v. Court of Appeals, L-50877, April 28, 1983, 121 SCRA 777. 80 Lao v. To-Chip, No. L-76597, February 26, 1988, 158 SCRA 243. 81 People v. Escalante, No. L-37147, August 22, 1984, 131 SCRA 237. 82 Lawan v. Moleta, A. M. No. 1696-MJ, June 19, 1979, 90 SCRA 579. 83 Salvador v. Salamanca, A. M. No. R-177-MTJ, September 24, 1986, 144 SCRA 276.

1. Before Finality of Judgments or Final Orders:

(a) Motion for Reconsideration;

(b) Motion for New Trial; and

(c) Appeal.

2. After Finality of Judgments or Final Orders:

(a) Relief for Judgments or Final Orders;

(b) Petition for Certiorari; and

(c) Annulment of Judgment.

2. Motion for Reconsideration and New Trial

1. Common Rules

1.1 Time to File

A motion for reconsideration or new trial may be filed within the period for taking appeal. Note that a pro forma motion for new trial or reconsideration shall not toll the reglementary period. A pro forma motion for reconsideration or new trial is one which does not comply with the requirements of Rule 37 and does not toll the reglementary period to appeal.184

1.2 No motion for extension of time to file motion for reconsideration or new trial is allowed.185

1.3 A motion for reconsideration or new trial suspends the running of the period to appeal but if denied, the movant has only the balance of the reglementary period within which to take his appeal.186

1.4 Resolution of motion 1

1 1

Cledera v. Sarmiento, Nos. L-32450-51, June 10, 1971, 39 SCRA 552; Firme v. Reyes, No. L-35858, August 21, 1979, 92 SCRA 713. 85 Habaluyas Enterprises, Inc. v. Japson, No. L-70895, May 30, 1986, 142 SCRA 208. 86 Rules of Court, Rule 41, Sec. 3. 84

A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order.187

2. Motion for Reconsideration

Grounds:

(1) damages awarded are excessive;

(2) evidence is insufficient to justify the decision or final order; and

(3) decision or final order is contrary to law.188

2.1 A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.189

2.2 No party shall be allowed a second motion for reconsideration.190

3. Motion for New Trial

3.1 Grounds

Any of the following causes materially affecting the substantial rights of an aggrieved party:

3.1.1 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

3.1.2 Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.191

3.2 Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of fraud which prevented 1

87

1

88

1 1 1

Ibid, Sec. 4. Rules of Court, Rule 37, Sec. 1. 89 Ibid, Sec. 2. 90 Rules of Court, Rule 37, Sec. 5. 91 Ibid, Sec. 2.

the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy. Instances of collateral fraud are acts intended to keep the unsuccessful party away from the court by a false promise of compromise, or purposely keeps him in ignorance of the suit, or where the attorney fraudulently pretends to represent a party and connives at his defeat, or corruptly sells out his client’s interest.192 It is to be distinguished from intrinsic fraud which refers to the acts of a party at the trial which prevented a fair and just determination of the case 193 and which could have been litigated and determined at the trial or adjudication of the cases, such as falsification, false testimony and so forth, and does not constitute a ground for new trial.194

3.3 Mistake generally refers to mistakes of fact but may also include mistakes of law where, in good faith, the defendant was misled in the case. Thus, a mistake as to the scope and extent of the coverage of an ordinance,195 or a mistake as to the effect of a compromise agreement upon the need for answering a complaint,196 although actually constituting mistakes of law, have been considered sufficient to warrant a new trial.

3.4 Negligence must be excusable and generally imputable to the party but the negligence of counsel is binding on the client just as the latter is bound by the mistakes of his lawyer.197 However, negligence of the counsel may also be a ground for new trial if it was so great such that the party was prejudiced and prevented from fairly presenting his case.198

3.5 To warrant a new trial, newly discovered evidence:

(1) must have been discovered after trial;

(2) could not have been discovered and produced at the trial despite reasonable diligence; and

(3) if presented, would probably alter the result of the action. 199 Mere initial hostility of a witness at the trial does not constitute his testimony into newly discovered evidence.200

3.6 A motion for new trial shall be supported by affidavits of merits which may be rebutted by affidavits. An affidavit of merits is one which states:

(1) the nature or character of the fraud, accident, mistake or excusable negligence on which the motion for new trial is based;

1

92

1

93

1

1 1 1

1 1 2

Magno v. Court of Appeals, No. L-28486, September 10, 1981, 107 SCRA 285. Palanca v. American Food Manufacturing Co., Inc., No. L-22822, August 30, 1968, 24 SCRA 819. 94 Tarca v. Vda. De Carretero, 99 Phil. 419 [1956]; Conde v. Intermediate Appellate Court, No. L-70443, September 15, 1986, 144 SCRA 144. 95 City of Iloilo v. Pinzon, 97 Phil 968 [Unreported] [1955]. 96 Salazar v. Salazar, 8 Phil. 183 [1907]. 97 Gaba v. Castro, No. L-56171, January 31, 1983, 120 SCRA 505; Ayllon v. Sevilla, No. L-79244, December 10, 1987, 156 SCRA 257. 98 People v. Manzanilla, 43 Phil. 167 [1922]; cf. Republic v. Arro, No. L-48241, June 11, 1987, 150 SCRA 625. 99 National Shpiyards and Steel Corporation v. Asuncion, 103 Phil. 67 [1958]. 00 Arce v. Arce, 106 Phil. 630 [1959].

(2) the facts constituting the movant’s good and substantial defenses or valid causes of action;201 and

(3) the evidence which he intends to present if his motion is granted.

An affidavit of merits should state facts and not mere opinions or conclusions of law. 202 An affidavit of merits is required only if the grounds relied upon are fraud, accident, mistake or excusable negligence. 203 Affidavits of merits may be dispensed with when the judgment is null and void as where the court has no jurisdiction over the defendant or the subject matter, 204 or is procedurally defective as where judgment by default was rendered before the reglementary period to answer had expired, 205 or where the defendant was unreasonably deprived of his day in court206 as when no notice of hearing was furnished him in advance. 207 Affidavits of merits are not required in motions for reconsideration.208

3.7 Effect of Granting of Motion For New Trial

If a new trial is granted in accordance with the provisions of this Rule, 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, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same.209

3. Appeal

Note: This subject shall be limited to appeal from first level courts to the Regional Trial Court 210 and appeals from the Regional Trial Court.211 Trial courts are not concerned with the other kinds and modes of appeals.

1. General Principles

1.1 An appeal is a statutory right and part of due process. Perfection of an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional.212

1.2 Only parties can appeal from a decision. A surety on a bond to insure execution of judgment becomes a party when notice was served upon it for execution of the judgment and may appeal from the order of 2

01

2

02

2 2 2 2 2 2 2 2 2 2

Ferrer v. Yap Sepeng, No. L-39373, September 30, 1974, 60 SCRA 149. Malipol v. Tan, No. L-27730, January 2, 1974, 55 SCRA 202; Ferrer v. Yap Sepeng, supra, note 201. 03 Ganaban v. Bayle, No. L-28804, November 27, 1969, 30 SCRA 365. 04 Republic v. De Leon, 101 Phil. 773 [1957]. 05 Gonzalez v. Francisco, supra, note 62. 06 Valerio v. Tan, 99 Phil. 419 [1956]. 07 Soloria v. Cruz, G. R. No. 20738, January 31, 1966, 16 SCRA 114; Gattoc v. Sarrenas, 104 Phil. 221 [1958]. 08 Mendoza v. Bautista, No. L-45885, April 28, 1983, 121 SCRA 760. 09 Rules of Court, Rule 37, Sec. 6. 10 Rules of Court, Rule 40. 11 Rules of Court, Rules 41 and 42. 12 Villanueva v. Court of Appeals, G. R. No. 99357, January 27, 1992, 205 SCRA 537; Borre v. Court of Appeals, No. L57204, March 14, 1988, 158 SCRA 560.

execution.213

1.3 A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court.214 However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court.215

1.4 Those which cannot be appealed:

(1) An order denying a motion for new trial or reconsideration;

(2) An order denying a petition for relief or any similar motion seeking relief from judgment;

(3) An interlocutory order;

(4) An order disallowing or dismissing an appeal;

(5) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(6) An order of execution;

(7) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(8) An order dismissing an action without prejudice.

In all of the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.216

1.5 Difference between final order and an interlocutory order

A final order is one that completely disposes of a case or of a particular matter. An interlocutory order is one that does not finally dispose of a case and does not end the court’s task of adjudicating the parties’ contentions and determining the rights and liabilities as regards each other but obviously indicates that other things remain to be 2

13

2

14

2 2

People’s Homesite and Housing Corporation v. Jeremias, G. R. No. 43252, September 30, 1976, 73 SCRA 239. Medina v. Court of Appeals, G. R. No. 98334, May 8, 1992, 208 SCRA 887. 15 Espina v. Court of Appeals, G. R. No. 102128, November 6, 1992, 215 SCRA 484. 16 Rules of Court, Rule 41, Sec. 1.

done by the court.217

It does not, however, necessarily mean that an order is not final simply because there is something more to be done in the merits of the case. It is settled that a court order is final in character if it puts an end to the particular matter resolved, leaving thereafter no substantial proceeding to be had in connection therewith except its execution; and contrariwise, that a given court order is merely of an interlocutory character if it is provisional and leaves substantial proceedings to be had in connection with its subject in the court by whom it was issued.218

Thus, the issue whether an order is a final order is its effect on the rights of the parties. A final judgment, order or decree is one that finally disposes of, adjudicates or determine the rights, or some rights of the parties, either on the entire controversy or some definite and separate branch thereof, and which concludes them until it is reversed or set aside.219 This is best exemplified in actions where there are two stages, such as expropriation, 220 partition221 and in special proceedings where there are several stages.222 4. The Modes of Appeal The three (3) modes of appeal are:

(1) ordinary appeal;223

(2) petition for review;224 and

(3) appeal by certiorari (petition for review on certiorari).225

5. Cognate Rules

1. As a general rule, in ordinary appeals, execution is stayed unless the rule or law provides otherwise. Among these are:

(1) Decision in Forcible Entry and Unlawful Detainer, unless appellant stays immediate execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision;226

2

17

2

18

2

2

Investments, Inc. v. Court of Appeals, No. L-60036, January 27, 1987, 147 SCRA 334. De La Cruz v. Paras, G. R. No. 41053, February 27, 1976, 69 SCRA 556 cited in Republic v. Tacloban City Ice Plant, Inc., G. R. No. 106413, July 5, 1996, 258 SCRA 145. 19 De la Cruz v. Paras, Ibid.; Gold City Integrated Port Services, Inc. (INPORT) v. Intermediate Appellate Court, G. R. Nos. 71771-73, March 31, 1989, 171 SCRA 579. 20 Municipality of Biñan v. Garcia, G. R. No. 69260, December 22, 1989, 180 SCRA 576.

2

21

2

22

2

23

2 2 2

Miranda v. Court of Appeals, G. R. No. 80030, October 26, 1989, 178 SCRA 702.

Rules of Court, Rule 109, Sec. 1. Rules of Court, Rules 40 and 41. 24 Rules of Court, Rules 42 and 43. 25 Rules of Court, Rule 45. 26 Rules of Court, Rule 70, Sec. 19.

(2) Decision of the Metropolitan, Municipal or Municipal Circuit Trial Court or the Regional Trial Court where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order;227

(3) Decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure;228

(4) Decision of Quasi-Judicial Agencies under the Rules of Court, Rule 43, Section 12, unless otherwise provided for by the Court of Appeals;

(5) Decision in Cases of Injunction, Receivership, Support and Accounting.229

2. Difference Between Question of Fact and Question of Law

When the question is the correctness or falsity of an alleged fact, the question is a question of fact. When the question is what law is applicable in a given set of facts, the question is a question of law.230

3. Notice of Appeal

It need not be approved by the Court which rendered the decision. The court however may deny it due course if on its face, it was filed out of time or the appellate docket and other lawful fees have not been paid. The court which rendered the decision cannot however deny due course to the Notice of Appeal on the ground that the appeal is frivolous or dilatory.231

4. Record on Appeal

A Record on Appeal is required in: (a) Special Proceedings; (b) Other cases of multiple or separate appeals where the law or the Rules so require.232

5. Perfection of appeal

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 2

27

2

28

2 2 2 2

Rules of Court, Rule 39, Sec. 2. Revised Rules on Summary Procedure, Sec. 21. 29 Rules of Court, Rule 39, Sec. 4. 30 Cheesman v. Intermediate Appellate Court, G. R. No. 74833, January 21, 1991, 193 SCRA 93. 31 Ortigas & Co. Ltd. Partnership v. Velasco, G.R. No.109645, August 15, 1997, 277 SCRA 342. 32 Rules of Court, Rule 41, Sec. 2.

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 time to appeal of the other parties.233

6. Effect of Perfection of Appeal

The court which rendered the appealed decision loses its jurisdiction over the case. However, it may still do the following:

(1) issue an order for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal;

(2) approve compromise of the parties prior to the transmittal of the record on appeal to the appellate court;

(3) permit the prosecution of indigent appeals;

(4) order execution pending appeal in accordance with Section 2, Rule 39; and

(5) approve withdrawal of appeal.234

7. Period of time to appeal must be strictly enforced on considerations of public policy. The period is mandatory and jurisdictional235 and the failure to do so renders the questioned decision final and executory that deprives the appellate court of jurisdiction to alter the final judgment much less to entertain the appeal236 or motion for new trial.237 The decision of the Court of Appeals after expiration of the period to appeal is null and void.238

9. EXECUTION OF JUDGMENTS AND FINAL ORDERS (Rule 39) 1. Basic Concepts and Doctrines

2

33

2

34

2 2 2 2

Rules of Court, Rule 41, Sec. 9. Ibid. 35 Government Service Insurance System v. Gines, G. R. No. 85273, March 9, 1993, 219 SCRA 724. 36 De Castro, Jr. V. Court of Appeals, No. L-36021, February 29, 1988, 158 SCRA 288. 37 Velaso v. Ortiz, G. R. No. 51973, April 16, 1990, 184 SCRA 303. 38 Antonio v. Court of Appeals, No. L-77656, August 31, 1987, 153 SCRA 592.

1. Execution is a legal remedy for the enforcement of a judgment.239

2. Kinds of Execution

There are two (2) kinds of execution: discretionary execution and ministerial execution. Discretionary execution, which is also called execution pending appeal, is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court.240 To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it.241

On the other hand, execution as a matter of right or ministerial execution is execution of a final judgment or final order which has attained finality. When a judgment or order has become final, the court cannot refuse to issue a writ of execution except:

(1) When subsequent facts and circumstances transpire which render such execution unjust, or impossible, such as a supervening cause like the act of the Commissioner of Civil Service finding the plaintiff administratively guilty and which constituted a bar to his reinstatement as ordered by the trial court in a civil case;242 or where the defendant bank was placed under receivership;243

(2) On equitable grounds, as when there has been a change in the situation of the parties which makes execution inequitable;244

(3) Where the judgment has been novated by the parties;245

(4) When a petition for relief or an action to enjoin the judgment is filed and a preliminary injunction is prayed for and granted;246

(5) Where the judgment has become dormant, the five (5) year period under Rule 39, Section 6 having expired without the judgment having been revived;247 or

(6) Where the judgment turns out to be incomplete248 or is conditional149 since, as a matter of law, such judgment 2

39

2

40

2 2 2 2

2

2 2 2 1

Pelejo v. Court of Appeals, No. L-60800, August 31, 1982, 116 SCRA 406. Rules of Court, Rule 39, Sec. 2. 41 Ibid. 42 The City of Butuan v. Ortiz, 113 Phil. 636 [1961]. 43 Lipana v. Development Bank of Rizal, G. R. No. 73884, September 24, 1987, 154 SCRA 257. 44 Vda. de Albar v. De Carandang, 116 Phil. 516 [1962]; Heirs of Guminpin v. Court of Appeals, No. L-34220, February 21, 1983, 120 SCRA 687; Luna v. Intermediate Appellate Court, G. R. No. 68374, June 18, 1985, 137 SCRA 7. 45 Fua Cam Lu v. Yap Fauco, 74 Phil. 287 [1943]; Zapanta v. De Rotaeche, 21 Phil. 154 [1912]; Salvante v. Cruz, 88 Phil. 236 [1951]. 46 Refer to Rules of Court, Rule 38, Sec. 5. 47 Cunanan v. Court of Appeals, No. L-25511, September 28, 1968, 25 SCRA 263. 48 Del Rosario v. Villegas, 49 Phil. 634 [1926]; Ignacio v. Hilario, 76 Phil. 605 [1946]. 49 Cu Unjieng e Hijos v. Mabalacat Sugar Co., 70 Phil. 380 [1940].

cannot become final. 3. When writ of execution may be quashed (1) when it was improvidently issued;

(2) when it is defective in substance;

(3) when it is issued against the wrong party;

(4) where the judgment was already satisfied;

(5) when it was issued without authority;

(6) when a change in the situation of the parties renders execution inequitable; and

(7) when the controversy was never validly submitted to the court.250 4. Execution of final judgments and orders There are two (2) ways of securing execution of final judgments and orders: execution by motion and execution by action. Execution by motion is an execution obtained through a motion for execution filed within five (5) years from the date of its entry.251 Execution by action is obtained through the substitution of an action to enforce a judgment or order after the lapse of five (5) years from its entry and before it is barred by the statute of limitations.252

5. Specific Rules

1. Execution of judgment can only be issued against a party to the action 253 and their privies who are those between whom an action is deemed binding although they are not literally parties to the said action254 or to an intervenor.255

2. A judgment becomes final and executory by operation of law, not by judicial declaration. The prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is a ministerial duty and compellable

2

2 2 2 2 2

Cobb-Perez v. Lantin, G. R. No. 22320, May 22, 1968, 23 SCRA 637; Sandico, Sr. v. Piguing, No. L-26115, November 29, 1971, 42 SCRA 322. 51 Rules of Court, Rule 39, Sec. 6. 52 Ibid. 53 St. Dominic Corporation v. Intermediate Appellate Court, No. L-70623, June 30, 1987, 151 SCRA 577. 54 Cabresos v. Tiro, No. L-46843, October 18, 1988, 166 SCRA 400. 55 Lising v. Plan, No. L-50107, November 14, 1984, 133 SCRA 194. 50

by mandamus.256 There must, however, be a motion.257

3. Rule on execution in case of the death of a party

If the judgment debtor dies after entry of judgment, execution depends upon the nature of the judgment. Thus: (a) For recovery of real or personal property or the enforcement of a lien thereon, execution may be done against executor, administrator or successor-in-interest; (b) For money judgments, the judgment should be presented as claim for payment against the estate in a special proceeding. Such a claim need no longer be proved, since the judgment itself is conclusive.258

4. When the property subject of the execution contains improvements constructed or planted by the judgment debtor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon petition of the judgment creditor after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.259

The special order of demolition may be granted only upon petition of the plaintiff after due hearing, and upon the defeated party’s failure to remove the improvements, within reasonable time given him by the court.260

The notice required before demolition of the improvements on the property subject of the execution is notice to the judgment debtor, and not to a stranger or third party to the case. 261 The order of demolition is not appealable.262

The sheriff and the issuing party should carry out the demolition of the improvement of the defeated party on the premises in dispute in a manner consistent with justice and good faith.263

Where the premises was padlocked and no one was therein at the time execution was carried into effect, there was no need for the sheriffs and the plaintiff to secure a 'break-open' order inasmuch as the character of the writ in their hands authorized them to break open the said premises if they could not otherwise execute its command.264

6. Levy and Garnishment

Levy is the seizure of property, personal and/or real, belonging to the judgment debtor for subsequent execution sale to satisfy judgment. Garnishment is the process of notifying a third person called the garnishee to retain and 2

2 2 2 2 2 2

2 2

Munez v. Court of Appeals, G.R. No. 46010, July 23, 1987, 152 SCRA 197; City of Manila v. Court of Appeals, G.R. No. 100626 November 29, 1991, 204 SCRA 362. 57 Rules of Court, Rule 39, Sec. 1; Soco v. Court of Appeals, G. R. No. 116013, October 21, 1996, 263 SCRA 449. 58 Evangelista v. La Proveedora, Inc., No. L-32824, March 31, 1971, 38 SCRA 379. 59 Rules of Court, Rule 39, Sec. 14; Rom v. Cobadora, No. L-24764, July 17, 1969, 28 SCRA 758. 60 Fuentes v. Leviste, No. L-47363, October 28, 1982, 117 SCRA 958. 61 Lorenzana v. Cayetano, No. L-37051, August 31, 1977, 78 SCRA 485. 62 David v. Ejercito, No. L-41334, June 18, 1976, 71 SCRA 484, Cua v. Lecaros, No. L-71909, May 24, 1988, 161 SCRA 480. 63 Albeltz Investments, Inc. v. Court of Appeals, No. L-32570, February 28, 1977, 75 SCRA 310. 64 Arcadio v. Ylagan, A. C. No. 2734, July 30, 1986, 43 SCRA 168. 56

attach the property he has in his possession or under his control belonging to the judgment debtor, to make disclosure to the court concerning the same, and to dispose of the same as the court shall direct to satisfy the judgment.265

1. Decisional Rules on Levy

1.1 A valid levy is essential to the validity of an execution sale, and levy is invalid if the notice of levy of real property is not filed with the office of the register of deeds, the purpose of which is to notify third parties who may be affected in their dealings with respect to such property.266 Where a parcel of land levied upon execution is occupied by a party other than a judgment debtor, the procedure is for the court to order a hearing to determine the nature of said adverse possession.267

1.2 To effect a levy upon real property, the sheriff is required to do two specific things:

(a) file with the register of deeds, a copy of the order and description of the attached property and notice of attachment; and

(b) leave with the occupant of the property a copy of the same order, description and notice.268

Note that notice to the owner who is not the occupant does not constitute compliance with the statute.269

1.3 Real property, stocks, shares, debts, credits and other personal property, may be levied on in like manner and with like effect as under a writ of attachment.270

1.4 The levy on execution shall create a lien in favor of the judgment creditor over the right, title and interest of the judgment debtor in such property at the time of the levy, subject to liens and encumbrances then existing.271

1.5 Levy or attachment over properties themselves is superior than levy on the vendor’s equity of redemption over said properties.272

2 Decisional Rules on Garnishment

2.1 The garnishment of property to satisfy a writ of execution operates as an attachment and fastens upon the property a lien by which the property is brought under the jurisdiction of the court issuing the writ. It is brought 2

65

2

66

2 2 2 2 2 2

Rules of Court, Rule 39, Sec. 9. Valenzuela v. De Aguilar, No. L-18083-84, May 31, 1963, 8 SCRA 212. 67 Guevara v. Ramos, No. L-24358, March 31, 1971, 38 SCRA 194. 68 Delta Motors Corporation v. Court of Appeals, No. L-78012, November 29, 1988, 168 SCRA 206. 69 Philippine Surety and Insurance Co., Inc. v. Zabal, No. L-21556, October 31, 1967, 21 SCRA 682. 70 Rules of Court, Rule 39, Sec. 15. 71 Ibid., Sec. 12. 72 Top Rate International Services, Inc. v. Intermediate Appellate Court, No. L-674996, July 7, 1986, 142 SCRA 467.

into custodia legis, under the sole control of such court.273 It is also known as attachment execution.

2.2 Money judgments are enforceable only against property unquestionably belonging to the judgment debtor. One man’s goods shall not be sold for another man’s debts, as the saying goes.274

2.3 The prohibition against examination or an inquiry into a bank deposit under Rep. Act No. 1405 does not preclude its being garnished to insure satisfaction of judgment.275

2.4 Government-owned-and-controlled corporations have a personality of their own, separate and distinct from the government; their funds, therefore, although considered to be public in character, are not exempt from garnishment.276

7. Rules on redemption

1. Who may redeem

1.1 Judgment debtor;

1.2 Successor-in-interest such as a person to whom the debtor has conveyed his interest in the property; person to whom a statutory right of redemption has been transferred; person who succeeds to the interest of the debtor by operation of law; one or more joint owners of the property; wife as regards her husband’s homestead; and attorney who agreed to divide the property in litigation;277 and

1.3 Redemptioner, which is 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.278

2. Amounts to be paid in case of redemption

2.1 Purchase price with 1% per month interest;

2.2 Assessments or taxes paid with 1% interest:

2.3 Amount of prior lien if also a creditor having a prior lien to that of redemption other than the judgment under which purchase was made with interest. Note that the foregoing does not apply if the one who redeems is the judgment debtor unless he redeems from a redemptioner in which case, he must make the same payments as 2

73

2

74

2 2 2 2

De Leon v. Salvador, No. L-30871, December 28, 1970, 36 SCRA 567. Ong v. Tating, No. L-61042, April 15, 1987, 149 SCRA 265. 75 China Banking Corporation v. Ortega, No. L-34964, January 31, 1973, 49 SCRA 355. 76 Philippine National Bank v. Pabalan, No. L-33112, June 15, 1978, 83 SCRA 595. 77 Magno v. Viola, 61 Phil. 80 [1934]; Palicte v. Ramolete, No. L-55076, September 21, 1987, 154 SCRA 132. 78 Sec. 27 (b).

redemptioner.279

8. Rules in deed of possession

1. After the deed of sale has been executed, the vendee therein is entitled to a writ of possession but the same shall issue only where it is the judgment debtor or his successors-in-interest who are in possession of the premises. Where the land is occupied by a third party, the court should order a hearing to determine the nature of his adverse possession.280 The writ shall issue when the period of redemption has expired.

2. A writ of possession may be issued only in a land registration proceeding, in extrajudicial foreclosure of a real estate mortgage and in judicial foreclosure if the debtor is in possession and no third person, not a party to the suit, had intervened.281 It has been held, however, that a writ of possession is a complement of the writ of execution. Hence, if under a final judgment the prevailing party acquires absolute ownership over the real property involved, the writ may be issued for him to obtain possession without the need of filing a separate action against the possessor.282 A writ of possession may also be sought from and issued by the court unless a third party is holding the property adversely to the judgment debtor.283

2

79

2

80

2 2 2

2 Moran 329 [1979]. Guevara v. Ramos, No. L-24358, March 31, 1971, 38 SCRA 194; Unchuan v. Court of Appeals (Fifth Division), No. L-78775, May 31, 1988, 161 SCRA 710. 81 Gatchalian v. Arlegui, No. L-35615, February 17, 1977, 75 SCRA 234. 82 Olego v. Rebuena, No. L-39350, October 29, 1975, 67 SCRA 446. 83 Roxas v. Buan, No. L-53798, November 8, 1988, 167 SCRA 43.

PART TWO - Provisional Remedies

Common Rules

1. Provisional remedies are:

(1) Those to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose during the pendency of the action.

(2) They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter.284

2. The provisional remedies are

(1) Attachment (Rule 57);

(2) Preliminary Injunction (Rule 58);

(3) Receivers (Rule 59);

(4) Replevin (or delivery of private property) ( Rule 60); and

(5) Alimony Pendente Lite (Rule 61).

Affidavits are required to support the issuance of any of these remedies and, with the exception of alimony pendente lite, a bond to answer for damages by reason of the improvident issuance of the writ. Recovery of damages from the bond is governed by Rule 57, Section 20.285

A. Attachment

2

84

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85

Calo v. Roldan, 76 Phil. 445 [1946]. Rules of Court, Rule 58, Sec. 8; Rule 59, Sec. 9; Rule 60, Sec. 10.

1. Definition

A writ of preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant.286

2. Concept and Purpose.

Attachment is a juridical institution which has for its purpose to secure the outcome of the trial, that is, the satisfaction of the pecuniary obligation really contracted by a person or believed to have been contracted by him, either by virtue of a civil obligation emanating from contract or from law, or by virtue of some crime or misdemeanor that he might have committed, and the writ issued, granted it, is executed by attaching and safely keeping all the movable property of the defendant, or so much thereof as may be sufficient to satisfy the plaintiff’s demands.287

The chief purpose of the remedy of attachment is to secure a contingent lien on defendant’s property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors.288

3. Nature and Scope: Attachment Purely Statutory

Attachment is not a distinct proceeding in the nature of an action in rem but it is a proceeding to an action of law, designed to secure the payment of any judgment the plaintiff may obtain.

Attachment, as a provisional remedy, is purely a statutory one. It does not exist unless expressly granted by the statute. It is therefore not available except in those cases where the statute expressly permits.289 For this purpose, the party seeking an attachment must show that a sufficient cause of action exists and that the amount due him as much as the sum for which the order of attachment is sought.290

4. Strict Compliance with the Rule

The rule on the issue of a writ of attachment must be construed strictly in favor of the defendant. If all the requisites for the issuance of the writ are not present, the court, which issues it acts in excess of 2

2

2

2 2

Adlawan v. Tomol, G.R. No. 63225, April 3, 1990, 184 SCRA 31; Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992 212 SCRA 260 Cited in Chemphil Export and Import Corporation (CEIC) v. Court of Appeals, G.R. No. 112438-39, December 12, 1995, 251 SCRA 257. 87 Guzman v. Catolica, 65 Phil. 257 [1937]; Gruenberg v. Court of Appeals, No. L-45948, September 10, 1985, 138 sCRA 471 Cited in CEIC v. Court of Appeals, supra, note 286. 88 Spouses Salgado v. Court of Appeals, No. L-55381, March 26, 1984, 128 SCRA 395; CEIC v. Court of Appeals, supra, note 286. 89 U.S. v. Namit, 38 Phil. 926 [1918]. 90 General v. De Venecia, 78 Phil. 780 [1947] 86

jurisdiction.291 It should be issued only on concrete and specific grounds.292

5. Attachment to Acquire Jurisdiction Over the Res

Attachment is intended to confer jurisdiction by the court over the res. When real property of a nonresident defendant located in Philippines is attached to answer for the claim of the plaintiff, the court acquires jurisdiction over the res and in that event, the jurisdiction over the person of said defendant is not essential.293

6. Stages in the Issuance of the Writ

The grant of the provisional remedy of attachment practically involves three (3) stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be obtained. However, once the implementation commences, it is required that the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the court will not bind the defendant.294

A preliminary attachment is a rigorous remedy which exposes the debtor to humiliation and annoyance, such that it should not be abused to cause unnecessary prejudice. It is, therefore, the duty of the court, before issuing the writ, to ensure that all the requisites of the law have been complied with; otherwise, the judge acts in excess of its jurisdiction and the writ so issued shall be null and void.295

The affidavit must establish that:

1) a sufficient cause of action exists;

2) the case is one of those mentioned in Rule 57, Section 1;

3) there is no sufficient security for the claim sought to be enforced by the action;

4) the amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims. 2

91

2

92

2 2 2

Gruenberg v. Court of Appeals, supra, note 287. Dy vs. Enage, No. L - 35351, March 17, 1976, 70 SCRA 96. 93 Mabanag v. Gallemore, 81 Phil. 254 [1948] 94 Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992, 212 SCRA 260. 95 Salas v. Adil, No. L-46009, May 14, 1979, 90 SCRA 121; Spouses Salgado v. Court of Appeals, supra, note 288.

Failure of the affidavit to show that there is no other sufficient security for the claim sought to be enforced by the action, that the said amount due to the plaintiff above all legal set-offs or counterclaim is as much as the sum for which the order is sought renders that application fatally defective.296

Whether or not the affidavit sufficiently established facts therein stated is a question to be determined by the court in the exercise of sound discretion. The mere filing of an affidavit reciting the facts required by the above provision is not sufficient to compel the judge to grant the writ. It all depends upon the amount of credit given it by the judge who may accept or reject it in the exercise of his discretion.297

7. Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65.

8. Important Jurisprudential Rules

8.1 The purposes of preliminary attachment are:

1) to seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment; or

2) to enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected.298

Thus, a proceeding in attachment is in rem where the defendant does not appear, and in personam where he appears in the action.299 Where a lien already exists, e.g. a maritime lien, the same is equivalent to an attachment, 300just like that under a real estate mortgage.

8.2 Rule on Prior or Contemporaneous Jurisdiction

Although a writ of preliminary attachment may be issued ex-parte or even before service of summons on the defendant, it cannot however be implemented until the court has acquired jurisdiction over the person of the defendant.301

8.3 When the ground relied upon in asking for preliminary attachment is impending fraudulent removal, concealment and disposition of defendant’s property under paragraphs (d) and (e) of Section 1, Rule 57, the court should either conduct a hearing or require the submission of 2

2 2 2 3 3

Guzman v. Catolica, supra, note 287; K.O. Glass Construction Co., Inc. v. Valenzuela, No. L-48756, September 11, 1982, 116 SCRA 563; Jardine Manila Finance, Inc. v. Court of Appeals, G.R. No. 55272, April 10, 1989, 171 sCRA 636. 97 La Granja Inc. v. Samson, 58 Phil. 378 [1933]. 98 Mabanag v. Gallemore, supra, note 293; Quasha v. Juan, No. L-49140, November 19, 1982, 118 SCRA 505. 99 Banco Espanol-Filipino v. Palanca, 37 Phil. 921 [1918]. 00 Quasha v. Juan, supra, note 298. 01 Rules of Court, Rule 57, Sec. 5. 96

counter-affidavits from the defendant to gather facts in support of the allegations of fraud.302

8.4 Preliminary attachment may be granted in an action for a specified amount even when the claim is unliquidated other than for moral and exemplary damages.303

8.5 If a property has been levied upon by virtue of a writ of preliminary attachment, it becomes one under custodia legis and a subsequent extrajudicial foreclosure of said property by a thirdparty mortgagee does not affect the lien created by the attachment.304

8.6 A foreign corporation duly licensed to do business in the Philippines is not a non-resident within the meaning of Section 1(f), Rule 57; hence, its property here may not be attached on the mere ground that it is a non-resident.305 Insolvency of the defendant debtor is not a ground ofr the issuance of a writ of preliminary attachment.306 Section 1(f), concerning summons by publication, refers to those cases in Sections 14 and 16 of Rule 14.

8.7 Property exempt from execution is also exempt from preliminary attachment or garnishment.307 Garnishment does not lie against the funds of the regular departments or offices of the Government, but funds of public corporations are not exempt from garnishment.308

Preliminary Injunction and Temporary Restraining Order

There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction, it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages.309

1. Two (2) kinds of Preliminary Injunction

1.1 Preliminary Prohibitory Injunction which requires a person to refrain from a particular act; and

1.2 Preliminary Mandatory Injunction which requires a person to perform a particular act.

Caveat: Administrative Circular 07-99 To all judges of all lower courts: Re Exercise of Utmost Caution, Prudence, and Judiciousness in Issuance of Temporary Restraining Orders and Writs of Preliminary 3

02

3

03

3

3 3 3 3 3

Adlawan v. Torres, G.R. Nos 65957-58, July 5, 1994, 233 SCRA 645. Rules of Court, Rule 57, Sec. 1(a). 04 Consolidated Bank and Trust Corporation v. Intermediate Appellate Court, No. L-73796, May 29, 1987, 150 SCRA 591. 05 Claude Neon Lights, Fed., Inc. v. Philippine Advertising Corporation, 57 Phil. 607 [1932]. 06 Aboitiz and Co., Inc. v. Provincial Sheriff, No. L-35990, June 17, 1981, 105 SCRA 88. 07 Rules of Court, Rule 57, Sec. 5 08 Philippine National Bank v. Pabalan, No. L-33112, June 15, 1978, 83 SCRA 595. 09 28 Am. Jur. 201, IV-A Vicente J. Francisco, The Revised Rules of Court of the Philippines 179 [1971] quoted in University of the Philippines v. Catungal, Jr. G.R. No. 121863 May 5,1997, 272 SCRA 221, 236.

Injunction

2. Purpose

To prevent future injury and maintain the status quo — the last actual, peaceable, uncontested status which preceded the pending controversy.310

The sole object of preliminary injunction is to maintain the status quo until the merits can be heard.311

Suspension of orders is equivalent to injunction.312

A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interest and for no other purpose during the pendency of the principal action.313

3. Definition of status quo

The status quo is the last actual peaceable uncontested status that preceded the pending controversy.314

When parties are ordered to maintain the status quo in a TRO, but the prevailing condition at the time of its issuance is already that resulting from acts of usurpation by one of the parties, which acts of usurpation are clearly established in the pleadings, that TRO amounts to a perpetuation of the injurious effects of such acts of usurpation; such a state of things cannot clearly be allowed, for the office of the writ of injunction is to restrain the wrongdoer, not to protect him.315

4. Independent action merely to obtain preliminary injunction is not allowed. Some substantive relief must be sought.316

A writ of preliminary injunction, as an ancillary preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interest and for no other purpose during the pendency of the principal action.317

5. Essential Requisites for Issuance of Preliminary Injunction 3

3 3 3 3 3

3

3

Rivera v. Florendo, No. L-57586, October 8, 1986, 144 SCRA 643; Knecht v. Court of Appeals, G. R. No. 56122, November 18, 1993, 228 SCRA 1. 11 Searth Commodities Corp. v. Court of Appeals, G. R. No. 64200, March 31, 1992, 207 SCRA 622. 12 Philippine National Bank v. Adil, G. R. No. L-52853, November 2, 1982, 118 SCRA 110. 13 Bengzon v. Court of Appeals, No. L-82568, 31 May 1988, 161 SCRA 745. 14 Searth Commodities Corp. v. Court of Appeals, supra, note 311. 15 Buayan Cattle Co., Inc. v. Quintillan, G. R. No. L-26970, March 19, 1984, 128 SCRA 276; Villanueva v. Court of Appeals, G. R. No. 117661, July 15,1996, 259 SCRA 14 . 16 Bengzon v. Court of Appeals, G.R. No. 82568, May 31, 1988, 161 SCRA 745; Cootauco v. Court of Appeals, G. R. No. 56565, June 16, 1988, 162 SCRA 122; Buayan v. Quintillan, supra, note 315. 17 Ibid. 10

5.1 There must be right in esse or the existence of a right to be protected.

5.2 The act against which the injunction is to be directed is a violation of such right.318

6. Rulings

6.1 A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the action.319 It should only be granted if the party asking for it is clearly entitled thereto.320

6.2 An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action. There must exist an actual right.321

7. Summary denial without adequate hearing improper

While in the issuance of preliminary injunction, the courts are given sufficient discretion to determine the necessity for the grant of the relief prayed for as it affects the respective rights of the parties, with the caveat that extreme caution be observed in the exercise of such discretion, it is with an equal degree of care and caution that courts ought to proceed in the denial of the writ. It should not just summarily issue an order of denial without an adequate hearing and judicious evaluation of the merits of the application. A perfunctory and improvident action in this regard would be a denial of procedural due process and could result in irreparable prejudice to a party.322

8. When hearing on the merits unnecessary

xxx If the ground is the insufficiency of the complaint, the same is apparent from the complaint itself. Preliminary injunction in such a circumstance may be refused outright, with or without notice to the adverse party. In fact, under Section 6 of Rule 58, the court may also refuse an injunction on other grounds on the basis of affidavits which may have been submitted by the parties in connection with such application. xxx

xxx (Section 7 of Rule 58) merely specifies the actions that the court may take on the application for the writ if there is a hearing on the merits. It does not declare that such hearing is mandatory or prerequisite thereof. Otherwise, the courts will be forced to conduct a hearing even if from a consideration of the pleadings alone it can readily be ascertained that the movant is not entitled to the writ. xxx

It would be different xxx if there is a prima facie showing on the face of the motion or pleadings that the grant of preliminary injunction may be proper, in which case notice to the opposing party would be necessary since the grant of such writ on an ex parte 3

3 3

3

3

Buayan Cattle Co. v. Quintillian, supra, note 315; Saulog v. Court of Appeals, G.R. No. 119769 September 18, 1996, 262 SCRA 51; Arcega v. Court of Appeals G.R. No 122206 July 7, 1997, 275 SCRA 176. 19 China Banking Corporation v. Court of Appeals G.R. No. 121158, December 5, 1996, 265 SCRA 327. 20 Climaco v. Macadaeg, 114 Phil. 870 [1962]; Subido v. Gopengco, G. R. No. 25618, March 28, 1969, 27 SCRA 455; Police Commission v. Bello, G. R. Nos. 29959-60, January 30, 1971, 37 SCRA 230; Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13, 1989, 178 SCRA 493. 21 Republic of the Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736; Buayan v. Quintillan, supra, note 315. 22 Bataclan v. Court of Appeals, G. R. No. 78148, July 31, 1989, 175 SCRA 764. 18

proceeding is now proscribed.xxx

(If there is a prima facie showing that preliminary injunction is proper) a hearing should be conducted, since under such circumstance, only in cases of extreme urgency will the writ issue prior to a final hearing. Such requirement for prior notice and hearing underscores the necessity that a writ of preliminary injunction is to be dispensed with circumspection and both sides should be heard whenever possible. But it does not follow that such a hearing is indispensable where right at the outset the court is reasonably convinced that the writ will not lie. What was then discouraged and is now specifically prohibited is the issuance of the writ without notice and hearing. Xxx323

9. Cases where Injunction was held improper

9.1 To restrain collection of taxes324 except where there are special circumstances that bear the existence of irreparable injury.325

9.2 To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien such as the husband’s obligation to give support.326

9.3 To restrain a mayor proclaimed as duly elected from assuming his office.327

9.4 Against consummated acts.328

9.4.1 Against disposing of the case on the merits.329

9.4.2 Writ of injunction is not proper to stop the execution of judgment where the judgment was already executed.330

9.4.3 The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission.331

9.4.4 A writ of injunction is not proper to stop the execution of judgment where the judgment was already executed.332

3

23

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24

3 3 3 3 3

3 3 3

Valley Trading Co., Inc. v. Court of First Instance, G.R. No. 49529, 31 March 1989, 171 SCRA 501. Ibid. 25 Churchill & Tait v. Rafferty, 32 Phil. 580 [1915]. 26 Saavedra v. Estrada 56 Phil.33 [1931]. 27 Cereno v. Dictado, No. L-81550, April 15, 1988, 160 SCRA 759. 28 Philippine National Bank v. Adil, supra, note 312. 29 Government Service Insurance System (GSIS) v. Florendo, G. R. No. 48603, September 29, 1989, 178 SCRA 76; Ortigas and Company Limited Partnership v. Court of Appeals, No. L-79128, June 16, 1988, 162 SCRA 165. 30 Meneses v. Dinglasan, 81 Phil. 470 [1948]. 31 Ambrosio v. Salvador, No. L-47651, December 11, 1978, 87 SCRA 217. 32 Meneses v. Dinglasan, supra, note 330.

But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified.333

9.4 Not Allowed To Transfer Possession

A court should not by means of a preliminary injunction transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto.334 The function of injunction is to preserve the status quo ante.335

This is more particularly applicable where the legal title is in dispute and the party having possession asserts ownership in himself.336

10. Exceptions

10.1 Forcible entries in which the Court may issue preliminary mandatory injunction337 and by Section 20 thereof involving leases in which the court may, on appeal, grant similar mandatory injunctive relief. The exception applies only to ejectment cases exclusively cognizable by the municipal court.338

10.2 Property covered by Torrens Title when there is a clear finding of ownership and possession of the land or unless the subject property is covered by a Torrens Title pointing to one of the parties as the undisputed owner.339

11. Cases where injunction prohibited

11.1 Injunction against courts or tribunals of co-equal rank prohibited.340

11.2 Injunction orders are prohibited in the labor cases.341

3

33

3

34

3 3 3 3 3

3 3

Manila Surety and Fidelity v. Teodoro, G. R. No. 20530, June 29, 1967, 20 SCRA 463. Toyota Motors Philippines Corporation v. Court of Appeals, G. R. No. 102881, Dec. 7, 1992, 216 SCRA 236. 35 Knecht v. Court of Appeals, G. R. No. 56122, November 18, 1993, 228 SCRA 1. 36 Gordillo and Martinez v. Del Rosario, 39 Phil. 829 [1919]. 37 Rules of Court, Rule 70, Sec. 15. 38 Ramos v. Court of Appeals, G.R. 81354, July 26, 1988, 163 SCRA 583. 39 GSIS v. Florendo, supra, note 329; Cagayan de Oro City Landless Residents Association, Inc. v. Court of Appeals, G. R. No. 106043, March 4, 1996, 254 SCRA 229. 40 Roldan, Jr. v. Arca, G. R. No. 25434, July 25, 1975, 65 SCRA 336. 41 Associated Labor Union (AKU-TUCP) v. Borromeo, No. L-75736, September 29, 1988, 166 SCRA 99; Kaisahan ng mga Manggagawa v. Sarmiento, No. L-47853, November 16, 1984, 133 SCRA 220.

11.3 No injunction beyond prayer in complaint.342

11.4 To enjoin the prosecution of criminal proceedings.343

12. Cases where Criminal Prosecutions were Enjoined344

1) For the orderly administration of justice;

2) To prevent the use of the strong arm of the law in an oppresive and vindictive manner;

3) To avoid multiplicity of actions;

4) To afford adequate protection of constitutional rights;

5) In proper cases because the statute relied upon is unconstitutional or was held invalid;345

6) Where the constitutionality of the Chinese Book Keeping Law was questioned;346

7) Where the hearing of the libel case was enjoined by permanent injunction after the Supreme Court in a separate case found the communication alleged to be libelous as privileged and not libelous;347

8) Where a traffic ordinance was found to be invalid;348 and

9) Where the fiscal was restrained from further proceeding with criminal case found to be civil in nature.349 Note: This was later on reconsidered.350

13. Mandatory Injunction

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42

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43

3 3 3 3 3 3 3

The Chief of Staff, AFP v. Guadiz, Jr., No. L-35007, December 39, 1980, 101 SCRA 827. Romero v. The Chief of Staff, AFP, G. R. No. 84076, February 20, 1989, 170 SCRA 108; Reyes v. Camilon, G. R. No. 46198, December 20, 1990, 192 SCRA 445. 44 Brocka v. Enrile, G. R. Nos. 69863-65, December 10, 1990, 192 SCRA 182. 45 Justiniani v. Castillo, No. L-41114, June 21, 1988, 162 SCRA 378. 46 Yu Cong Eng v. Trinidad, 47 Phil. 385 [1925]. 47 Ang v. Castro, G. R. No. L-66371, May 15, 1985, 136 SCRA 453; Justiniani v. Castillo, supra, note 345. 48 Primicias v. Municipality of Urdaneta, Pangasinan, No. L-26702, October 18, 1979, 93 SCRA 462. 49 Guingona v. City Fiscal of Manila, No. L-60033, April 4, 1984, 128 SCRA 577. 50 Guingona v. City Fiscal of Manila, Reconsidered, Resolution, 137 SCRA 597.

13.1 Requisites

A mandatory injunction is granted only on a showing that:

(1) The invasion of the right is material and substantial;

(2) The right of a complainant is clear and unmistakable;

(3) There is an urgent and permanent necessity for the writ to prevent serious damage.351

14. Cases where Mandatory Injunction not Granted

Mandatory injunction was not granted in the following instances:

(1) to compel cohabitation;352

(2) in cancellation of attachment;353 and

(3) in release of imported goods pending hearing before Commissioner of Customs.354

(4) Injunctions are also not available to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established.355 The office of the writ of injunction is to restrain the wrongdoer356 not to protect him.357

15. Injunction against courts or tribunals of co-equal rank is prohibited

15.1 A court may not interfere by injunction with the judgments or orders of another court of coordinate and concurrent jurisdiction.358

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3 3 3

Pelejo v. Court of Appeals, No. L-60800, October 18, 1982, 117 SCRA 666; Rivera v. Florendo, No. L-60066, July 31, 1986, 143 SCRA 278. 52 Arroyo v. Vasquez, 42 Phil. 54 [1921]. 53 Levy Hermanos v. Lacson, 71 Phil. 94 [1940]. 54 Commissioner of Customs v. Cloribel, G. R. No. 20266, January 31, 1967, 19 SCRA 234. 55 Emilia v. Bado, G. R. No. 23685, April 25, 1968, 23 SCRA 183; Pio v. Marcos, G. R. No. 27849, April 30, 1974, 56 SCRA 726. 56 Calo v. Roldan, supra, note 284. 57 Buayan Cattle v. Quintillian, supra, note 315. 58 Roldan, Jr. v. Arca, G. R. No. 25434, July 25, 1975 65 SCRA 336; Abiera vs. Court of Appeals, G. R. No. 26294, May 31, 1972, 45 SCRA 314. 51

The principle applies regardless of whether it is an ordinary action or a special civil action.

15.2 No writ may be issued by the Regional Trial Court against quasi-judicial bodies of equal rank such as Social Security Commission, Securities and Exchange Commission,359 Intellectual Property Office, Commission on Elections, or Workmen’s Compensation Commission.360

15.3 Inferior courts may issue writs of preliminary injunction only in forcible entry and unlawful detainer cases. The exclusive original jurisdiction of the inferior court in civil cases now includes the grant of provisional remedies in proper cases.361

16. Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction

Injunction orders are prohibited in the following cases:

16.1 Under Batas Pambansa Blg. 227 amending Art. 255 (Labor Code), no temporary or permanent injunction in cases growing out of labor dispute shall be issued by a court or other entity except as otherwise provided in Articles 281 and 264 of this Code.362

Under Presidential Decree No. 218, it is the National Labor Relations Commission (NLRC) that issues an injunction in labor disputes.363

16.2 Rep. Act No. 8735

Prohibition of issuance of temporary restraining orders, preliminary injunctions, or preliminary mandatory injunctions against government infrastructure projects.

The law expressly repeals Presidential Decree No. 605 (prohibiting injunction involving concessions, licenses and other permits issued by public administrative office or bodies for the exploitation of natural resources) and Presidential Decree No. 1818 (prohibiting injunction in cases involving infrastructures and natural resources development and public utilities)364.

16.3 Presidential Decree No. 385

Prohibition to issue injunction against any government financing institution in any action taken by such institution in connection with the mandatory foreclosure where arrears amount to at least 20% of the total outstanding obligations including interest and other charges as appearing in the book of 3

59

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60

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Philippine Pacific Fishing Co., Inc. v. Luna, No. L-59070, March 15, 1982, 112 SCRA 604. Nocnoc v. Vera, No. L-37737, February 27, 1979, 88 SCRA 529. 61 BP Blg. 129, Sec. 33; Vide Refer to Rules of Court, Rule 70, Sec. 15. 62 Associated Labor Union (ALU-TUCP) v. Borromeo, supra, note 341. 63 Kaisahan ng mga Manggagawa v. Sarmiento, supra, note 341. 64 National Power Corporation v. Vera, G.R. No. 83558, 27 Feb. 1989, 170 SCRA 721.

accounts and/or related records of the financial institutions concerned.365

Presidential Decree No. 385 cannot however, be applied where the extent of the loan actually received by the borrower is still to be determined.366

It is not also applicable to properties already foreclosed. The prohibition found in Presidential Decree No. 385 against the issuance of injunctions by lower courts, unless certain conditions are met, applies only to foreclosure proceedings initiated by government financing institutions like the Development Bank of the Philippines.367

16.4 No restraining order or preliminary injunction against the Presidential Agrarian Reform Council (PARC)

No court in the Philippines shall have jurisdiction to issue any restraining order or writ of preliminary injunction against PARC or any of its duly authorized or designated agencies in any case, dispute or controversy arising from, necessary to, or in connection with the application, implementation, enforcement, or interpretation of this Act and other pertinent laws on agrarian reform.368

16.5 Prohibition to issue injunction against the Asset Privatization Trust (APT)369

16.6 A court should issue a writ of preliminary injunction only when the petitioner assailing a statute or administrative order has made out a case of unconstitutionality aside from showing a clear legal right to the remedy sought.370

16.7 Presidential Decree No. 605 which prohibits courts from exercising jurisdiction to issue preliminary injunction in a case involving the issuance or approval by administrative officials of public grants in connection with the exploitation of natural resources, does not apply in a case where the complaint does not put in issue the legitimacy of the defendant’s claim of being holders of mining lease contracts, but asserts that defendants had rights.371

17. Injunctions not issued where act sought to be prevented had been committed

An injunction suit becomes moot and academic after the act sought to be enjoined had already been 3

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Filipinas Marble Corporation v. Intermediate Appellate Court, No. L-68010, May 30, 1986, 142 SCRA 180. Filipinas Marble Corporation v. Intermediate Appellate Court, ibid.; Government Service Insurance System v. Court of Appeals, G.R. No. 42278, January 20, 1989, 169 SCRA 244. 67 Searth Commodities Corporation v. Court of Appeals, supra, note 311; Republic of the Philippines v. Court of Appeals G.R. No.107943, Feb. 3, 2000. 68 Sec. 55, CARP Law. 69 Sec. 31-A, Proclamation No. 50-A; Mantruste System v. Court of Appeals, G.R. Nos. 86540-41, November 6, 1989, 179 SCRA 136. 70 Tablarin v. Gutierrez, No. L-78164, July 31, 1987, 152 SCRA 730. 71 D.C. Crystal, Inc. v. Laya, G.R. No. 53597, February 28, 1989, 170 SCRA 734.

consummated.372 A prohibitory injunction cannot be issued when the act sought to be enjoined has already been committed.373

18. No injunction beyond prayer in complaint

Courts should not issue orders or injunctions beyond those prayed for in the complaint.374

19. Temporary Restraining Order

The procedural guidelines in the issuance of TRO and Preliminary Injunction in a Multiple Sala Court are provided for in Supreme Court Administrative Circular No. 20-95.

When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall proceed as follows:

(a) Verified application and bond for preliminary injunction or temporary restraining order;

(b) Determination from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice.

(c) If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance;

(d) In either case, even if no TRO had been issued because there is no extreme urgency, the case shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

However, (1) where the summons could not be served personally or by substituted service despite diligent efforts, or (2) the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply.

(e) If no TRO has been issued because there is no extreme urgency, the application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

(f) Within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary 3

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Philippine Commercial and Industrial Bank v. National Mines and Allied Workers Union (NAMAWU-MIF), No. L50407, August 19, 1982, 115 SCRA 873; Romulo v. Yñiguez, No. L-71908, February 4, 1986, 141 SCRA 263; Rivera v. Florendo, No. L-57586, October 8, 1986, 144 SCRA 658. 73 Philippine National Bank v. Adil, supra, note 312; Ramos, Sr. v. Court of Appeals, G.R. Nos. 80908-09, May 24, 1989, 173 SCRA 550. 74 The Chief of Staff, AFP v. Guadiz, Jr., supra, note 342. 72

injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.

(g) Determination within twenty days from service of the TRO on the party sought to be enjoined whether a preliminary injunction shall issue or not.

(h) The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued. Another restraining order may, therefore, be issued provided it is not based on the same ground.

Receivership

1. Appointment of a Receiver

The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person.375 A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.376

2. Specific situations when a receiver may be appointed

2.1 Family Code, Article 101

If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership.

2.2 Rules of Court, Sec. 41, Rule 39

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.

2.3 After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal.377

2.4 After final judgment, a receiver may be appointed as an aid to the execution of judgment.378 3

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Alcantara v. Abbas, No. L-14890. September 30, 1963, 9 SCRA 54. Abrigo v. Kayanan, No. L-28601, March 18, 1983, 121 SCRA 20. 77 Rules of Court, Rule 41, Sec. 9; Acuña v. Caluag, 101 Phil. 446 [1957]. 78 Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929].

2.5 Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances as when it is reasonably necessary to secure and protect the rights of the real owner.379

Replevin

1. Steps in the Issuance and Implementation of a Writ of Replevin

1.1 A party praying for the recovery of possession of a personal property files with the court at the commencement of the action or before answer in application for a writ of replevin.380

To accompany the application is the affidavit which should state that:

(1) that the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

(2) that the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;

(3) that the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment , or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and

(4) the actual market value of the property.

2. Notes

(1) The applicant of a writ of replevin need not be the owner for it is enough if he has a right to possess it.381

(2) Replevin cannot be availed of if the property is in custodia legis as where it is under attachment or was seized under a search warant382 except:

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Dolar v. Sundiam, No. L-27631, April 30, 1971, 38 SCRA 616. Rules of Court, Rule 60, Sec. 1. 81 Yang v. Valdez, G. R. No. 73317, August 31, 1989, 177 SCRA 141. 82 Pagkalinawan v. Gomez, Nos. L-22585, December 16, 1967, 21 SCRA 1275; Rules of Court, Rule 60, Sec. 2 (c).

a. when the seizure is illegal;383 and

b. where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims.384

3. The defendant is entitled to the return of the property taken under a writ of replevin if the following requisites are met:

(1) S/he posts a redelivery bond and

(2) S/he furnishes the plaintiff of a copy of the undertaking within five (5) days from taking and

(3) the bond is sufficient and in proper form.385

Support Pendente Lite

1. Notes and Cases

1.1 Support pendente lite can be granted by the court in two (2) instances:

(1) civil action for support; and

(2) criminal action where civil liability includes support for the offspring as a consequence of the crime.

1.2 Where the right to support is put in issue by the pleadings or the fact from which the right to support arises is in controversy or has not been established, the court cannot grant support pendente lite.386

1.3 The amount of support pendente lite is not final in character in the sense that it can be the subject of modification depending on the changing conditions affecting the ability of the obligor to pay the amount fixed for support.387

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Bagalihog v. Fernandez, G. R. No. 96356, June 27, 1991, 198 SCRA 614. Chua v. Court of Appeals, G. R. No. 79021, May 17, 1993, 222 SCRA 85. 85 Rules of Court, Rule 60, Secs. 5 and 6. 86 Francisco v. Zandueta, 61 Phil. 752 [1929]. 87 San Juan v. Valenzuela, No. L-59906, October 23, 1982, 117 SCRA 926.

1.4 If an application for support pendente lite is denied, the remedy is certiorari.

1.5 Mere affidavits or other documents appearing in the record are sufficient basis for the court to determine amount of support pendente lite.388

1.6

Support pendente lite are allowed in criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil

aspect thereof has not been waived, reserved or instituted prior to its filing.389

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Reyes v. Ines-Luciano, No. L-48219, February 28, 1979, 88 SCRA 803. Rules of Court, Rule 6, Sec. 6.

PART III - SPECIAL CIVIL ACTIONS The special civil actions are:

(1) Interpleader (Rule 62);

(2) Declaratory Relief (Rule 63);

(3) Certiorari, Prohibition and Mandamus (Rule 65);

(4) Quo Warranto (Rule 66);

(5) Expropriation (Rule 67);

(6) Foreclosure of Real Estate Mortgage (Rule 68);

(7) Partition (Rule 69);

(8) Forcible Entry and Unlawful Detainer (Rule 70); and

(9) Contempt (Rule 71).

I. The Different Special Civil Actions 1. Interpleader

1. Requisites

(1) The plaintiff claims no interest in the subject matter or his claim is not disputed;

(2) There must at least be two (2) or more conflicting claimants;

(3) The parties to be interpleaded must make effective claims; and

(4) The subject matter must be one and the same.

2. Decisional Rules

Interpleader was found to be a proper action in an action of a lessee who does not know to whom to pay rentals due to conflicting claims on the property;390 and in an action by a bank where the purchaser of a cashier's check claims it was lost and another has presented it for payment.391 It was however found to be improper in an action where defendants have conflicting claims against the plaintiff;392 and an action where one of the defendants had earlier sued the plaintiff and secured a judgment against him which has already become final. The action is barred by laches or unreasonable delay.393

3. Procedural Peculiarities

3.1 Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another.394

3.2 The court may direct in the same order mentioned in the preceding paragraph that the subject matter of the suit be paid or delivered to the court.395

3.3 The summons shall be accompanied by copies of the complaint and order mentioned in No. 1.

3.4 The defendants may file a motion to dismiss on the ground of the impropriety of the interpleader action or on other appropriate grounds specified in Rule 16.

3.5 The defendants shall serve a copy of the answer not only to the plaintiff but also to their codefendants who may file their reply thereto.

3.6 The effect of a failure to plead within the prescribed period is that, upon motion, the defendant will be declared in default and thereafter renders judgment barring him from any claim in respect to the subject matter.

2. Declaratory Relief and Similar Remedies

1. Requisites

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Pagkalinawan v. Rodas, 80 Phil. 281 [1948]. Mesina v. Intermediate Appellate Court, No. L-70145, November 13, 1986, 145 SCRA 497. 92 Beltran v. People’s Homesite and Housing Corporation, No. L-25138, August 28, 1969, 29 SCRA 145. 93 Wack Wack Golf and Country Club, Inc. v. Won, No. L-23851, March 26, 1976, 70 SCRA 165. 94 Rules of Court, Rule 62, Sec. 2. 95 Ibid.

(1) There must be a justiciable controversy;396

(2) The controversy must be between persons whose interest is adverse;

(3) The parties must have legal interest in the controversy;

(4) The controversy must be ripe for judicial determination;397 and

(5) The petition must be filed before there is a breach or violation.398

2. Procedural Peculiarities

2.1 The petition must be filed before there is a breach of contract or violation of the statute or ordinance.399

2.2 Third-party complainant is not allowed.400

2.3 Except in actions for quieting of title, the court action on an action for declaratory relief is discretionary. Thus, the court motu proprio or upon motion may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action or in any case where the declaration or construction is not necessary under the circumstances.401

2.4 When a statute, executive order or any government regulation or ordinance is alleged to be unconstitutional, the Solicitor-General should be notified by the party assailing the same.402 If the validity of a local government ordinance is in question, the prosecutor or attorney of the local government should be notified.403

3. Declaratory Relief Improper in the Following Cases

(1) to obtain judicial declaration of citizenship;404

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Obiles v. Republic, 92 Phil. 864 [1953]. Board of Optometry v. Colet, G. R. No. 122241, July 30, 1996, 260 SCRA 88. 98 Rules of Court, Rule 63, Sec. 1. 99 Ibid. 00 Commissioner of Customs v. Cloribel, No. L-21036, June 30, 1977, 77 SCRA 459. 01 Rules of Court, Rule 63, Sec. 5. 02 Ibid.,Sec. 3. 03 Ibid.,Sec. 4. 04 Dy Poco v. Commissioner of Immigration, No. L-22313, March 31, 1966, 16 SCRA 615; Singson v. Republic, No. L21855, January 30, 1968, 22 SCRA 353.

(2) to seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide claims which are uncertain;405

(3) to resolve political issues or questions;406

(4) to test the correctness or validity of a court decision;407

(5) to determine hereditary rights;408

(6) when the petition is based upon the happening of a contingent event;

(7) when the petitioner is not the real party in interest;409 and

(8) when administrative remedies have not yet been exhausted.410

3. Certiorari

1. Requisites

(1) A tribunal, board or officer exercises judicial or quasi-judicial function;

(2) It or s/he acts without or in excess of jurisdiction or with grave abuse of discretion; and

(3) There is no appeal nor plain, speedy and adequate remedy in the ordinary cause of law.

2. Terminology

(1) Without jurisdiction – absence of a legal power to determine a case.

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Lim v. Republic, No. L-29535, February 27, 1971, 37 SCRA 783. Dela Llana v. Commission on Elections, No. L-47245, December 9, 1977, 80 SCRA 525. 07 Tanda v. Aldaya, 52 O.G. No. 11, 5175 (September 15, 1956). 08 Edades v. Edades, 52 O.G. No. 11, 5149 (September 15, 1956). 09 Santos v. Aquino, 94 Phil. 65 [1953]. 10 Ollada v. Central Bank, No. L-11357, May 31, 1962, 5 SCRA 297.

(2) Excess of jurisdiction – the court has jurisdiction but fails to comply with the conditions prescribed for its exercise.411

(3) Grave abuse of discretion – judicial power is exercised capriciously, arbitrarily or despotically due to passion or personal hostility.412

3. Certiorari is not a proper remedy if appeal is available or it is lost through the fault of the petitioner,413 except:

(1) appeal is not a speedy and adequate remedy;414

(2) order is issued without or in excess of jurisdiction;415

(3) in consideration of public welfare and for the advancement of public policy;416

(4) order is a patent nullity;417

(5) to avoid future litigation;418

(6) to avoid a miscarriage of justice;419

(7) in furtherance of the broader interest of justice and equities.420

4. Before certiorari can be availed of, petitioner should first file a motion for reconsideration of the challenged order, resolution or decision,421 except in the following cases:

(1) in the interest of justice and public welfare and advancement of public policy;422

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Leung Ben v. O’Brien, 38 Phil. 182 [1918]; Tengco v. Jocson, 43 Phil. 715 [1922]. Gamboa v. Cruz, No. L-56291, June 27, 1988, 162 SCRA 642; Filinvest Credit Corporation v. Intermediate Appellate Court, No. L-65935, September 30, 1988, 166 SCRA 155. 13 Dillena v. Court of Appeals, No. L-77660, July 28, 1988, 163 SCRA 630; Velasco Vda. De Caldito v. Segundo, No. L58187, September 30, 1982, 117 SCRA 573. 14 Saludes v. Pajarillo, 78 Phil. 754 [1947]. 15 Philippine National Bank v. Florendo, G. R. No. 62082, February 26, 1992, 206 SCRA 582. 16 Jose v. Zulueta, No. L-16598, May 31, 1961, 2 SCRA 574. 17 Marcelo v. De Guzman, No. L-29077, June 29, 1982, 114 SCRA 657. 18 St. Peter Memorial Park, Inc. v. Campos, Jr., No. L-38280, March 21, 1975, 63 SCRA 180. 19 Escudero v. Dulay, No. L-60578, February 23, 1988, 158 SCRA 69. 20 Marahay v. Melicor, G. R. No. 44980, February 6, 1990, 181 SCRA 811. 21 Butuan Bay Wood Export Corporation v. Court of Appeals, No. L-45473, April 28, 1980, 97 SCRA 297. 22 Jose v. Zulueta, supra, note 416.

(2) order was issued without or in excess of jurisdiction;423

(3) order is a patent nullity424 as when petitioner's right to due process was denied in the lower court425 or petitioner has been unlawfully deprived of his right to appeal;426

(4) when relief is extremely urgent, there is no more need to wait for the resolution of a motion for reconsideration;427

(5) when the questions raised and passed upon in the lower court are the same as those to be passed upon in the certiorari case;428 and

(6) question is purely of law.429

5. Requirements Regarding the Extrinsic Sufficiency of the Petition

(1) it must be verified;430

(2) accompanied by a certificate of non-forum shopping;431

(3) accompanied with certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto;432

(4) proof of service pursuant to Rule 13, Section 1; and

(5) if not filed and served personally, then, it should be accompanied by a written explanation why personal service was not resorted to.433

6. Time to File

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Philippine Consumers Foundation, Inc. v. National Telecommunications Commission, No. L-63318, November 25, 1983, 125 SCRA 845. 24 Aquino v. National Labor Relations Commission, G. R. No. 98108, September 3, 1993, 226 SCRA 76. 25 Bache and Co. (Phil.), Inc. v. Ruiz, No. L-32409, February 27, 1971, 37 SCRA 823. 26 National Electrification Administration v. Court of Appeals, No. L-32490, December 29, 1983, 126 SCRA 394. 27 Vda. de Sayman v. Court of Appeals, No. L-25596, April 28, 1983, 121 SCRA 650. 28 Peroxide Philippines Corporation v. Court of Appeals, G. R. No. 92813, July 31, 1991, 199 SCRA 882. 29 Central Bank v. Cloribel, No. L-26971, April 11, 1972, 44 SCRA 307. 30 Rules of Court, Rule 65, Sec. 1. 31 Ibid. 32 Ibid. 33 Rules of Court, Rule 13, Sec. 11. 23

Within sixty (60) days from notice of decision, resolution or order sought to be assailed, or from the denial of petitioner’s motion for reconsideration or new trial filed in due time after judgment.434

7. Decisions

7.1 As a general rule, certiorari is not a proper remedy to assail the order of the trial court denying a demurrer to evidence in a civil case.435 Motion for reconsideration and, in case of denial, appeal, are the proper remedy.

4. Prohibition

1. Requisites

(1) a tribunal, corporation, board, officers or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty arising from an office, trust, or station or unlawfully excludes another from the use or enjoyment of a right or office to which the plaintiff is entitled; and

(2) there is no other plain, speedy and adequate remedy in the ordinary course of law.

2. Decisional Rules

2.1 Mandamus is an appropriate remedy to compel a corporation to grant its monthly salaried employees holiday pay.436

2.2 Mandamus is not proper to compel a school to enroll a student for academic deficiencies because this involves the exercise by the school of discretion under academic freedom.437

2.3 Mandamus will not lie against the President or Congress because of the principle that the judiciary is a co-equal department of the latter.438

2.4 Failure to exhaust administrative remedies is generally fatal to an action for mandamus.439 The 4

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Rules of Court, Rule 65, Sec. 4. Asian Trading Corporation v. Court of Appeals, G. R. No. 76276, February 15, 1999, 303 SCRA 152. 36 Mantrade/FMMC Division Employees and Workers Union v. Bacungan, No. L-48437, September 30, 1986, 144 SCRA 510. 37 University of the Philippines v. Ayson, G. R. No. 88386, August 17, 1989, 176 SCRA 571. 38 Suanes v. Chief Accountant of the Senate, 81 Phil. 818 [1948] Resolution on the Motion for Reconsideration, 81 Phil. 877 [1948]. 39 Aquino v. Mariano, No. L-30485, May 31, 1984, 129 SCRA 532.

exception is when the question is purely of law.440

5. Quo Warranto

1. Definition

A quo warranto is a prerogative writ by which the Government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.441

2. Quo Warranto as distinguished From Election Contest

If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election protest.442 When the dispute is on the ineligibility of a person sought to be ousted, quo warranto is the proper action.443

3. Peculiarities of Proceedings

3.1 When the Solicitor General or a public prosecutor commences the action at the instance of another person, leave of court must first be secured.

3.2 The motion for leave must be set for hearing with notice to the respondent so that he may be heard; and

3.3 The court issues the order allowing the filing of the action within the period fixed therein.

6. Expropriation 1. Requisites For Exercise of Right

(1) due process of law – compliance with the rules set down (Rule 67);

(2) payment of just compensation; and 4

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One Heart Sporting Club, Inc. v. Court of Appeals, No. L-53790, October 23, 1981, 108 SCRA 416. 3 Moran 208 [1970]. 42 Caesar v. Garrido, 53 Phil. 97 [1929]. 43 Fortuno v. Palma, No. L-70203, December 18, 1987, 156 SCRA 691.

(3) taking must be for public use.444

2. Two (2) Stages in Expropriation Proceedings

2.1 Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable.445

2.2 Determination of just compensation

This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable.446 Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first.

7. Foreclosure of Real Estate Mortgage

1. The judgment in a judicial foreclosure proceeding should:

(1) make a finding of the amount due the plaintiff including interest, cost and other charges approved by the court;

(2) order defendant to pay said amount within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment; and

(3) if the defendant defaults, the court should order the sale at public auction of the mortgaged property.

2. Distinction Between Right of Redemption and Equity of Redemption

Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within ninety (90) to one hundred twenty (120) days after entry of judgment or even after the foreclosure sale but prior to its confirmation.447 On the other hand, right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the 4

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J. M. Tuazon and Co., Inc. v. Land Tenure Administration, No. L-21064, June 30, 1970, 33 SCRA 882. Municipality of Biñan v. Garcia, G. R. No. 69260, December 22, 1989, 180 SCRA 576. 46 Ibid. 47 Rules of Court, Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court, No. L-70987, September 29, 1988, 166 SCRA 87.

property subsequent to its mortgage or deed of trust under which the property is sold to redeem the property within one (1) year from the registration of the sheriff’s certificate of foreclosure sale.448

For as long as the sale have not been validly confirmed, the equity of redemption may be exercised by the mortgagor or his successors-in-interest.449

3. Writ of Possession in Judicial Foreclosure

After the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to install the buyer at auction into possession of the property sold.

4. Deficiency Judgment

Some rules on deficiency judgment are:

(1) A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists.450

(2) Deficiency judgment cannot be rendered against a non-resident defendant.451

(3) No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt. The remedy is an ordinary action against the debtor.452

(4) If the debtor dies, the deficiency may be filed as a claim against his estate.453

8. Partition

1. Two Stages of the Action

1.1 First Stage – Determination of the propriety of partition

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Rules of Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate Court, No. L-73859, September 26, 1988, 165 SCRA 654. 49 Limpin v. Intermediate Appellate Court, supra, note 447. 50 Governor of the Philippine Islands v. Torralba Viuda de Santos, 61 Phil. 689 [1935]. 51 El Banco Español-Filipino v. Palanca, 37 Phil. 921 [1918]. 52 Philippine Trust Co. v. Echaus Tan Siua, 52 Phil. 852 [1929]. 53 Rules of Court, Rule 86, Sec. 7. 48

This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable.454 If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed.455

1.2 Second Stage – The actual partitioning of the subject property

This is also a complete proceeding and the order or decision is appealable.

2. Prescription of Action

Action for partition is unprescriptible for as long as the co-owners expressly or impliedly recognize the coownership.456 However, if a co-owner repudiates the co-ownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. S/he should file an accion reivindicatoria which is prescriptible.457

3. Some Decisions

3.1 When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property.458

3.2 Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto.459

9. Forcible Entry and Unlawful Detainer

1. Nature of Accion Interdictal

It is:

(1) a special civil action involving a realty;

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Miranda v. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA 295. De Mesa v. Court of Appeals, G. R. No. 109387, April 25, 1994, 231 SCRA 773. Civil Code, Art. 494.

Roque v. Intermediate Appellate Court, No. L-75886, August 30, 1988, 165 SCRA 118. Noceda v. Court of Appeals, G. R. No. 119730, September 2, 1999, 313 SCRA 504. 59 Crucillo v. Intermediate Appellate Court, G. R. No. 65416, October 26, 1999, 317 SCRA 351.

(2) subject to the Rules on Summary Procedure;

(3) under the original exclusive jurisdiction of first level courts;

(4) nature of the action is determined by the allegation of the complaint and the character of the relief sought;460 and

(5) one co-owner may institute the action.

2. Immediate Execution and How to Stay It

A decision ejecting the defendant in a forcible entry or unlawful detainer case is immediately executory. But the judge should not order immediate execution in his decision.461 There must be notice of the judgment462 and a motion with notice to the adverse party.463

To stay execution, the defendant should:

(1) perfect his appeal in due time;

(2) files a sufficient supersedeas bond, approved by the Municipal Trial Court; and

(3) during the pendency of the appeal, s/he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court on or before the tenth (10th) day of each succeeding month.464 But upon motion of the plaintiff within ten (10) days from the perfection of the appeal to the Regional Trial Court, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious.465

3. Important Decisional Rules on Unlawful Detainer

3.1 A covenant to renew a lease contract which makes no provision as to the renewal or extension implies an extension or renewal upon the same terms as provided in the original lease contract.466

4

60

4

61

4 4 4 4 4

Abrin v. Campos, G. R. No. 52740, November 12, 1991, 203 SCRA 420. Lu v. Siapno, G. R. No. A. M. MTJ-3-99-1199, July 6, 2000; Felongco v. Dictado, A. M. No. RTJ-8650, June 28, 1993, 223 SCRA 696. 62 Dy v. Court of Appeals, G. R. No. 93756, March 22, 1991, 195 SCRA 585. 63 Kaw v. Anunciacion, A. M. No. MTJ-93-811, 242 SCRA 1. 64 Rules of Court, Rule 70, Sec. 19. 65 Ibid., Sec. 20. 66 Ledesma v. Javellana, No. L-55187, April 28, 1983, 121 SCRA 794.

3.2 An action for ejectment is not abated by the death of the defendant.467 The heirs become the substitute defendants.468

3.3 Where there is a defense of tenancy, there must be a preliminary hearing on the question of tenancy relations.469 If there is a prima facie showing of tenancy, the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB).470

3.4 The lessee is not permitted to deny the lessor's title.471

3.5 A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which an action for unlawful detainer may be instituted against him.472

This rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over one (1) year, and only thereafter filed forcible entry suit following demand to vacate.473

Elsewise stated, the tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer.474

3.6 Demand upon a tenant may be oral.475 If demand is made upon the person found on the premises, it must be done by serving upon him notice of such demand or by posting such notice on the premises if no person be found thereon.476

3.7 When failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give two (2) demands:

(1) demand to pay rental or comply with conditions of the lease and if this is not complied with,

(2) demand to vacate within fifteen (15) days in case of land or five (5) days in case of buildings from notice thereof. The two (2) demands may be embodied in one (1) letter.477 Demand to pay or comply makes lessee a deforciant while demand to pay and vacate is a 4

67

4

68

4

4 4 4 4 4 4 4 4

Vda. de Salazar v. Court of Appeals, G. R. No. 121510, November 23, 1995, 250 SCRA 305. Cañiza v. Court of Appeals, G. R. No. 110427, February 24, 1997, 268 SCRA 640. 69 Ignacio v. Court of First Instance of Bulacan, No. L-27897-98, October 29, 1971, 42 SCRA 89; Bayog v. Natino, G. R. No. 118691, July 5, 1996, 258 SCRA 378. 70 Baranda v. Padios, No. L-61371, October 21, 1987, 154 SCRA 720. 71 Rules of Court, Rule 131, Sec. 3 (b); Reyes v. Villaflor, No. L-15755, May 30, 1961, 2 SCRA 247. 72 Dakudao v. Consolacion, No. L-54753, June 24, 1983, 122 SCRA 877. 73 Muñoz v. Court of Appeals, G. R. No. 102693, September 23, 1992, 214 SCRA 216. 74 Refugia v. Court of Appeals G.R. No. 118284 July 5, 1996, 258 SCRA 211. 75 Jakihaca v. Aquino, G. R. No. 83982, January 12, 1990, 181 SCRA 67. 76 Rules of Court, Rule 70, Sec. 2. 77 Zobel v. Abreu, 52 O.G. No. 7, 3592 (July 16, 1956).

requirement for filing the action for unlawful detainer.

3.8 When the lease has expired, there is no need of prior demand to vacate. The lessor can immediately file an action for ejectment. Demand is necessary only when the ground for ejectment is failure to pay rent or comply with the conditions of the lease.478

Notice and demand to vacate is, however, required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month, and prevent an implied renewal of the lease.479

The notice provision is the one given after the expiration of the lease period for the purpose of aborting an implied renewal of the lease.480

3.9 An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and therefore, insufficient basis for the filing of an action for unlawful detainer.481

3.10 When there is no definite period for a lease but rental is paid from month to month, then under Article 1687 (Civil Code), the period is fixed which is from month to month. When the lessor gave the lessee a demand to vacate at the end of the month and he fails to do so, an action for unlawful detainer may be filed against him.482

3.11 Refusal to collect or accept rentals is not a defense. There must be consignation.483 Acceptance of back rentals after demand to vacate does not legitimize possession.484 Consignation must be where Sec. 5(b) provides either in court or in bank, in the name of and with notice to the lessor and not elsewhere.485

10. Contempt

Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the court’s order but such conduct as tends to bring the authority of the court and the administration of law into 4

78

4

79

4

4 4 4

4 4

Co Tiamco v. Diaz, 75 Phil. 672 [1946). Rivera v. Florendo, supra, note 351; Yap v. Cruz, G. R. No. 89307, May 8, 1992, 208 SCRA 692. 80 Chua v. Court of Appeals, G. R. No. L-106573 March 27, 1995, 60 SCRA 57; Gamboa’s Incorporated v. Court of Appeals, No. L-23634, July 29, 1976, 72 SCRA 131. 81 Penas, Jr. v. Court of Appeals, G. R. No. 112734, July 7, 1994, 233 SCRA 744. 82 Crisostomo v. Court of Appeals, No. L-43427 August 30, 1982, 116 SCRA 199. 83 Velez v. Avelino, No. L-48448, February 20, 1984, 127 SCRA 602; Soco v. Militante, No. L-58961, June 28, 1983, 123 SCRA 160; Uy v. Court of Appeals, G. R. No. 78538, October 25, 1989, 178 SCRA 671. 84 Cursino v. Bautista, G. R. No. 50335, August 7, 1989, 176 SCRA 65. 85 Medina v. Court of Appeals, G. R. No. 104615, August 24, 1993, 225 SCRA 607.

disrepute or in some manner to impede the due administration of justice.486

1. Two (2) kinds of Contempt

(Refer to the Table of Differences Between Direct and Indirect Contempt, infra)

2. Two (2) Aspects of Contempt

2.1 Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein.487

2.2 Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act.488

Note: A criminal contempt proceeding is in the nature of a criminal or quasi-criminal action and, therefore, punitive in nature. A civil contempt proceeding is remedial and civil in nature.

3. Decisions

3.1 The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable.489

3.2 A writ of execution issued by a court after five (5) years from entry of final judgment is void and disobedience thereto does not constitute indirect contempt.490

4. Necessity of Hearing

Previous hearing is required under Rule 71, Section 3 of the Revised Rules of Court, where an arrest and the subsequent detention of petitioner for her failure to appear at a hearing set by the trial judge is based on the commission of an indirect contempt. Without that hearing, the order violated the rules and deprived the petitioner of her liberty without due process.491

Where a lawyer fails to obey a subpoena and likewise committed direct contempt for having disturbed the preliminary examination being conducted by the judge by repeatedly driving his jeep and honking its horn 4

86

4

87

4 4 4 4

Halili v. Court of Industrial Relations, No. L-24864, April 30, 1985, 136 SCRA 112. People v. Godoy, G. R. Nos. 115908-09, March 29, 1995, 243 SCRA 64. 88 Ibid. 89 Yasay v. Recto, G.R. No. 129521, September 7, 1999, 313 SCRA 739. 90 Crucillo v. Intermediate Appellate Court, G.R. No. 65416, October 26, 1999. 91 Bulado v. Navarro, G.R. No. 59442, February 2, 1988, En Banc, Minute Resolution.

in the vicinity of the court session hall for which the lawyer was ordered arrested and confined in jail, the judge should issue a separate order for such direct contempt, and another order requiring the lawyer to show cause why he should not be punished for disobedience to its process, to give the lawyer a chance to explain his failure to appear as a witness.492

5. Contempt by non-party

Generally, no contempt is committed by one not a party to the case. The remedy against such person is either a civil or criminal action.493 However, persons who are not parties in a proceeding may be declared guilty of contempt for willful violation of an order issued in a case if said persons are guilty of conspiracy with any one of the parties in violating the Court’s order.494

6. Power to punish for contempt to be exercised in preservative not vindictive principle; what constitutes disobedience

Only in cases of clear and contumacious refusal to obey should the power be exercised. A bona fide misunderstanding of the terms of the order or of the procedural rules should not immediately cause the institution of contempt proceedings. 'The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain the respect without which the administration of justice must falter or fail. Such power being drastic and extraordinary in its nature xxx should not be resorted to xxx unless necessary in the interest of justice.495

TABLE 1 DIFFERENCES AMONG PROVISIONAL REMEDIES

DEFINITION

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92

4

93

4

4

GROUNDS

PURPOSE

COURT WHICH

Gardones v. Delgado, A. M. No. 120-MJ, July 23, 1974, 58 SCRA 58. Ayog v. Cusi, Jr., G. R. No. 46729, November 19, 1982, 118 SCRA 492. 94 Desa Enterprises, Inc. v. Securities and Exchange Commission, G. R. No. L-45430, September 30, 1982, 117 SCRA 321. 95 Villavicencio v. Lukban, 39 Phil. 778 [1919]; Gamboa v. Teodoro., 91 Phil. 270 [1952]; Sulit v. Tiangco, G. R. No. L35333, July 20, 1982, 115 SCRA 207; Lipata v. Tutaan, G. R. No. L-61643, September 29, 1983, 124 SCRA 877.

CAN GRANT 1. Preliminary Attachment (Rule 57)

A provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the adverse party therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching party against the adverse party

a. In an action for the recovery of a specified amount or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;

b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

c. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person;

d. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof;

e. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his

As security for the satisfaction of any judgment that may be recovered by the claimant

Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

creditors;

f. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication (Section 1) 2. Preliminary Injunction (Rule 58)

An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction (Section 1)

a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

b. That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

c. That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject

To preserve the status quo or to resolve the last uncontested status quo

Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

of the action or proceeding, and tending to render the judgment ineffectual (Section 3) 3. Temporary Restraining Order (TRO)

4. Receivership

An order which may issue upon the filing of an application for preliminary injunction forbidding the defendant to do the threatened act until a hearing on the application can be had

a. Matter is of extreme urgency; and

Provisional remedy by which the court appoints a receiver as its representative and in behalf of all the parties to an action for the purpose of preserving and conserving the property in litigation and to prevent possible wastage or dissipation or otherwise to carry the judgment into effect

a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;

b. The applicant will suffer grave injustice and irreparable injury before the matter can be heard on notice

b. When it appears in an action

To prevent grave injustice and irreparable injury to the applicant before the application for a writ of preliminary injunction can be acted upon

Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

To preserve the property during the pendency of the litigation or to dispose of it according to the judgment when it is finally rendered or otherwise to carry the judgment into effect

Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;

c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;

d. Whenever in other cases, it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation.

During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.

5. Replevin

Court orders the seizure of chattels or goods claimed by a party as his which are allegedly wrongfully taken or detained by another person and to be delivered to the former to be retained by him during the pendency of the action

a. Applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

b. The property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information

To prevent the subject property from being disposed of during the pendency of the case

Regional Trial Court, Family Court, Metropolitan, Municipal, and Municipal Circuit Trial Courts

and belief;

c. The property has not been distrained or taken of a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so

seized, that it is exempt from such seizure or custody;

d. The actual market value of the property. 6. Support Pendente Lite

Order issued by a court in which an action for support

When equity and justice may require having due regard to the probable outcome of the case

To answer the material needs of the applicant

Family Court

has been filed fixing an amount of support to be given by the adverse party to the applicant during the pendency of the case

and such other circumstances as may suggest the reasonability of granting support pendente lite

TABLE 2 BASIC CHARACTERISTICS OF PROVISIONAL REMEDIES

during the pendency of the case

1. Preliminary Attachment

WHEN AVAILABLE

HOW GRANTED

EFFECTIVI TY

HOW DISSOLVED/DISCHARGE D

At any stage of the action but before

Ex-parte/or upon motion and hearing

During the pendency of the case unless earlier discharged

By order of the court after notice and hearing on the ground that the preliminary attachment was improperly or

entry of final judgme nt

or quashed by the court

irregularly issued or enforced or the bond is insufficient and when the adverse party makes a cash deposit or files a counterbond executed to the attaching party with the clerk of court where the application

is made in an amount equal to that fixed by the court in the order of attachment, exclusive of cost 2. Preliminary Injunction

At any stage of the action

Upon motion and hearing

During the pendency of the case unless

By order of the court upon affidavit of the party enjoined or if it appears after hearing

but before judgme nt or final order

earlier discharged or quashed by the court

that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party or person enjoined while the

applicant can be fully compensated for such damages as he may suffer and the former files a counterbond 3. Temporary Restraining Order (TRO)

During the penden cy of

General Rule: Interpartes

Not more than 20 days from service

a. Upon resolution by the court of the application for a writ of preliminary injunction

the applicati on for a writ of prelimin ary injunctio n

(Summary hearing)

Exception: TRO granted by Judge for

upon the person sought to be enjoined

or the expiration of the 20-day period from service of the writ upon the party, whichever comes first;

b. Upon affidavit of the party enjoined or after hearing if it appears

72 hours – Ex-parte

that although the applicant is entitled to a TRO, the issuance or continuance thereof, would cause irreparable damage to the party enjoined while the applicant can be fully compensated

for such damage as he may suffer upon the applicant’s filing of a counterbond

4. Receivership

At any stage of the proceed ing and even after finality of judgme

Inter-partes

Until discharged by the court

a. Filing by the adverse party of a counterbond;

b. If it is shown that the appointment of a receiver was obtained without sufficient cause;

nt c. The court motu proprio or on motion shall determine that the necessity of a receiver no longer exists

TABLE 3 DIFFERENCES OF BONDS IN PROVISIONAL REMEDIES PROVISIONAL REMEDY 1. Preliminary attachment

WHETHER REQUIRED Required

AMOUNT

Discretionary with the court but not exceeding the applicant’s claim

UNDERTAKINGS UNDER THE COUNTERBOND To pay:

1. All costs which may be adjudged to the adverse party; and

2. All damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto 2. Preliminary injunction

Required

Discretionary with the court

To pay all damages which the adverse party may sustain by reason of the injunction if the court shall finally decide that the applicant was not entitled thereto

3. Temporary Restraining Order (TRO)

Required but the court may exempt

When required, discretionary with the court

To pay all damages which the adverse party may sustain by reason of the injunction, if the court shall finally decide that the applicant was not entitled thereto

4. Receivership

Required

Discretionary with the

To pay damages the

5. Replevin

Required

court

adverse party may sustain by reason of the appointment of a receiver in case the applicant shall have procured such appointment without sufficient cause

Double the value of the property

a. For the return of the property or its value to the adverse party if such be

adjudged; and

b. To pay to defendant such damages as he may recover from the applicant in the action 6. Support pendente lite

Not required

Not applicable

Not applicable

TABLE 4

DIFFERENCES OF COUNTERBONDS IN PROVISIONAL REMEDIES PROVISIONAL REMEDY

WHETHER IT MAY BE FILED

AMOUNT

UNDERTAKINGS UNDER THE COUNTERBOND

1. Preliminary attachment

Yes

Equal to that fixed by the court in the order of attachment

Payment of any judgment that the attaching party may recover in the action

2. Preliminary injunction

Yes

Discretionary with the court

Pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order

3. Temporary Restraining Order (TRO)

Yes. If a bond was filed by the claimant, then a counterbond may be filed by the adverse party; but if no bond is filed by the former, what the adverse party can file is a bond

Discretionary with the court

Pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order

4. Receivership

Yes

Discretionary with the court

To pay all damages which the applicant may suffer by reason of the acts, omissions, or other matters specified in the application or ground for such appointment

5. Replevin

Yes

Double the value of the property as stated in the plaintiff’s affidavit

a. The delivery of the property or its value to the plaintiff if so adjudged; and

b. To pay such damages which the plaintiff may recover against the defendant 6. Alimony Pendente Lite

No

Not applicable

Not applicable

TABLE 5

DIFFERENCES AMONG THE THREE (3) MODES OF APPEAL

ORDINARY APPEAL

PETITION FOR REVIEW

APPEAL BY CERTIORARI

1. How appeal is initiated

Ordinary appeal by notice of appeal or record on appeal

By filing a petition for review

By filing a petition for review on certiorari

2. Where to appeal

a. From the Metropolitan, Municipal and Municipal Circuit Trial Courts to the Regional Trial Courts, and from the Regional Trial Courts to the Court of Appeals in decisions of the Regional Trial Court rendered in the exercise of their respective original jurisdictions

From the Regional Trial Court to the Court of Appeals, a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction

From the Regional Trial Court to the Supreme Court on a pure question of law, a decision of the Regional Trial Court rendered in the exercise of its original jurisdiction

b. From the Metropolitan, Municipal and Municipal Circuit Trial Courts to the Court of Appeals for decisions rendered by the said courts in the exercise of their delegated jurisdiction, in which case the Metropolitan, Municipal and Municipal Circuit Trial Courts act as Regional Trial Courts 3. Nature of appeal

Matter of right

Matter of appellate court’s discretion

Matter of appellate court’s discretion

4. To whom appellate docket and other lawful fees should be paid

Clerk of Court whose decision is being appealed

Clerk of Court of the Court of Appeals

Clerk of Court of the Supreme Court

5. Payment of appellate docket and other lawful fees as a requirement of perfection of

Not a requisite for perfection of appeal but a ground for dismissal if not paid on time

A requirement for perfection of appeal

A requirement for perfection of appeal to be paid to the Clerk of Court of the Appellate Court

appeal 6. Name of parties

Appellant – party appealing

Petitioner – party appealing

Appellee – adverse party

Respondent – adverse party

Petitioner – party appealing

Respondent – adverse party 7. Requirement of record on

In special proceedings and other cases of multiple or

Not required

Not required

appeal

separate appeals

8. Basic document to be filed in the appellate court

a. From the Metropolitan, Municipal and Municipal Circuit Trial Court to the Regional Trial Court, memorandum

b. From the Regional Trial Court to the Court of Appeals,

Memoranda when required by the Court of Appeals

Memorandum when required by the Supreme Court

briefs 9. Perfection of appeal as to appellant

Upon filing of the notice of appeal in due time or if record on appeal is required, upon approval of the record on appeal in due time

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

Upon timely filing of the petition for review on certiorari and payment of docket and other lawful fees

10. When court

a. In appeal by notice of

Upon the perfection of the

Upon the perfection

whose decision is being appealed loses jurisdiction

appeal – upon perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties

b. In appeal by record on appeal – upon approval of the records on appeal filed in due time and the expiration of its time to appeal of the other parties

appeals filed in due time and the expiration of the time to appeal by the other parties

of the appeals filed in due time and the expiration of the time to appeal by the other parties

11. As to questions which may be raised

Question of fact, question of law and question of fact and law

Question of fact, question of law, question of fact and law

Only question of law

12. How parties are referred to

Appellant – party appealing

Petitioner – party appealing

Petitioner – party appealing

Appellee – adverse party

Respondent – adverse party Respondent – adverse party

TABLE 6 DIFFERENCES BETWEEN CERTIORARI, PROHIBITION AND MANDAMUS

CERTIORARI

PROHIBITION

MANDAMUS

1. Purpose of the writ

To annul or modify an act performed by respondent

To prevent commission or carrying out the act

Compel the performance or act desired

2. Act sought to be controlled

Judicial or quasi-judicial functions

Judicial, quasi-judicial or ministerial functions

Legal duty

3. Respondent

Persons exercising judicial or quasi-judicial functions

Persons exercising judicial, quasi-judicial and ministerial functions

Persons having legal duty

4. Nature of the remedy

Corrective remedy and refers to acts already consummated

Preventive remedy and refers to acts still to be done

Directory remedy commanding a person to do a legal duty

TABLE 7 DIFFERENCES BETWEEN PROHIBITION AND INJUNCTION

PROHIBITION

INJUNCTION

1. Respondent

Generally a court, tribunal or person exercising judicial or ministerial functions

Generally against a party in an action for injunction

2. Court’s jurisdiction

Lack or excess of jurisdiction may be a ground

Jurisdiction of the court is not questioned

3. Nature of the remedy

Always a main action with preliminary injunction as a provisional remedy

Can be a main action with preliminary injunction as a provisional remedy

TABLE 8

DIFFERENCES BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE ENTRY

UNLAWFUL DETAINER

1. Nature of defendant’s possession

Unlawful from the beginning

Initially lawful, then it becomes unlawful

2. Demand to vacate

No need

There is a need

3. Proof of prior possession

Plaintiff must prove it

Not necessary for plaintiff to prove it

4. From what point is the one (1) year period to file action counted

From forcible entry

From demand to vacate

SPECIAL PROCEEDINGS 1. INTRODUCTION 1. Definition of terms:

1. Special proceeding: A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.1

2. Probate: Probate is a special proceeding to establish the validity of a will. No will passes property unless it is probated by a court. Probate is mandatory. It is in rem. Hence, the court is also called a probate court. But a probate court also includes a court that presides over probate proceedings which can generally refer to the settlement of the estate of a deceased person with or without a will.

3. Reprobate: Reprobate is a special proceeding to establish the validity of a will proved in a foreign country.

4. Legacy: A legacy is a bequest of personal property in a will to a person called the legatee.2

5. Devise: A devise is a bequest of real property in a will to a person called the devisee.3

6. Testate Estate: Testate estate refers to an estate of a deceased person which is settled or to be settled with the last will and testament of that deceased person called the testator.4

7. Intestate Estate: Intestate estate refers to the estate of a deceased person without a will. The estate is settled by the laws of intestacy provided in the Civil Code.

8. Executor: An executor is the person named in the will who is entrusted to implement its provisions. But the executor needs to be issued letters testamentary after the court determines his or her qualifications. A female executor is called executrix.5

9. Administrator: An administrator is the person entrusted with the care, custody and management of the estate of a deceased person until the estate is partitioned and distributed to the heirs, legatees and devisees, if any. A female administrator is called administratrix.6

9.1 The court issues letters of administration to a person after s/he qualifies in the sound discretion 1 2 3 4 5 6

Rules of Court, Rule 1, Sec. 3 (c). Civil Code, Art. 782, par. 2. Ibid. Civil Code, Art. 775. Rules of Court, Rule 78. . Ibid

of the court.

9.2 It is possible that a will can be probated without a testator or with a testator who is disqualified to enter upon the trust. Hence, the court can issue letters of administration with the will annexed.

10. Escheat: Escheat, a term of French or Norman derivation meaning chance or accident, is the reversion of property to the State when the title thereto fails from defect of an heir. It is the falling of a decedent's estate into the general property of the State.

11. Guardians: A guardianship is a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. The person who acts is called the guardian and the incompetent is called the ward.

12. Trustee: A trustee is a person appointed by a court to carry out the provisions of a will, as provided in Rule 98. As generally understood, a trust is the legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property. The beneficiary of the trust is known as the cestui que trust or the cestui que trustent (the plural form).

13. Fideicommissary substitution: Fideicommissary substitution takes place where the testator designates a person as an heir charging him to deliver to another the whole or part of the inheritance under circumstances provided in Art. 863 of the Civil Code, formerly Art. 781 of the Spanish Civil Code. In the civil-law jurisdiction, this is the nearest equivalent of the concept of trust in the common-law jurisdiction.

14. Habeas corpus: The Latin term habeas corpus which literally means 'you have the body,' is a high prerogative writ, of ancient common-law origin, the great object of which is the liberalization of those who may be imprisoned without sufficient cause. Basically, it is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.7

15. Adoption: Adoption is a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.8

16. Change of Name: Change of name is a judicial proceeding in rem, requiring publication, and may be ordered by the court if proper and reasonable cause exists to justify it.

17. Family Home: The Family Home is the dwelling house where a husband and wife, or an unmarried head of a family resides, and the land on which it is situated, which is now deemed constituted from the time it is occupied as a family residence, and is exempt from execution, forced sale or attachment except as provided by law and to the extent of the value allowed by law.9

7 8 9

. Paynaga v. Wolfe, 2 Phil. 146 [1903]. Prasnik v. Republic 98 Phil. 665 [1956]. Civil Code, Arts. 152 and 153.

Note: Rule 106, which provides for the judicial constitution of a Family Home, is already extinct going by the Family Code which does not require a judicial constitution of the Family Home.

18. Absentees: An absentee is a person whose whereabouts and existence are not known in the sense of the law allowing a subsequent marriage and for purposes of administration of the estate of the absentee and of succession.

19. Civil Registry: The civil registry is the public record where acts, events and judicial decrees concerning the civil status of persons are entered.10

20. Multiple Appeals: Multiple appeals are appeals in special proceedings, as first provided in the Interim Rules of Court, where a number of appeals may be taken separately or simultaneously by different parties for different purposes. A record on appeal is necessary in order not to prejudice the proceedings that will have to continue and that may have to stop or be suspended if the entire record of the proceedings is elevated. 2. Rules That Govern Special Proceedings 1. The 1997 Rules of Civil Procedure shall govern the procedure to be observed in actions, civil or criminal, and special proceedings.11

2. In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.12

2.1 Rules regarding the preparation, filing and service of applications, motions and other papers, are the same in civil actions and in special proceedings. Provisions regarding the omnibus motion rule, subpoena, computation of time, motion for new trial, discovery, and trial before commissioners also apply in special proceedings. The procedure of appeal is generally the same in civil actions as in special proceedings.13

2.2 The rule on demurrer to evidence in civil cases, by virtue of which the defendant does not lose the right to offer evidence in the event that his motion is denied, is applicable in special proceedings.14 3. The Special Proceedings Provided In The Rules Of Court 1. Settlement of estate of deceased persons (Rules 73 to 90);

2. Escheat (Rule 91);

3. Guardianship and custody of children (Rules 92-97); 1

0

Civil Code, Art. 407.

1

1

. Rules of Court, Rule 1, Sec. 3; Suntay v. Cojuangco-Suntay, G. R. No. 132524, December 29, 1998, 300 SCRA 760

1

2

Rules of Court, Rule 72, Sec. 2

1

3

Fernandez v. Maravilla, No. L-18799, March 31, 1964, 10 SCRA 589.

1

4

Matute v. Court of Appeals, No. L-26751, January 3, 1969, 26 SCRA 768.

4. Trustees (Rule 98);

5. Adoption (Rule 99);

6. Rescission and revocation of adoption (Rule 100);

7. Hospitalization of insane persons (Rule 101);

8. Habeas corpus (Rule 102);

9. Change of name (Rule 103);

10. Voluntary dissolution of corporations (Rule 104) which under Presidential Decree No. 902-A, should be filed with the Securities and Exchange Commission and governed by specific rules;

11. Judicial approval of voluntary recognition of minor natural children (Rule 105);

12. Constitution of the Family Home (Rule 106), rendered inexistent by the Family Code which provides for an automatic constitution of the family home;

13. Declaration of absence and death (Rule 107); and

14. Cancellation or correction of entries in the civil registry (Rule 108).

D. Special Proceedings Under Various Laws

1. Summary Proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (Rep. Act No. 8369)

2.1 Petitions on foster care and temporary custody

2.2 Declaration of nullity of marriage under Article 36, Family Code

2.3 Cases of domestic violence against women and children (special provisional remedies and temporary custody of children and support pendente lite)

3. Proceedings under the Child and Youth Welfare Code (Pres. Decree No. 1083), the Child Abuse Act (Rep. Act No. 7610) and the Child Employment Act (Rep. Act No. 7658)

3.1 Declaration of status as abandoned, dependent or neglected children

3.2 Voluntary or involuntary commitment of children

3.3 Suspension, termination, or restoration of parental authority

4. Inter-country adoption under Republic Act No. 8043

5. Jurisdiction of Family Courts

The newly constituted Family Courts shall have exclusive original jurisdiction over the following cases:

1. 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, 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 the sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to Presidential Decree No. 603, otherwise known as the 'Child and Youth Welfare Code;'

2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

3. Petitions for adoption of children and the revocation thereof;

4. 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;

5. Petitions for support and/or acknowledgment;

6. Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the 'Family Code of the Philippines;'

7. 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;

8. Petitions for the constitution of the family home (Note: This is no longer necessary);

9. Cases against minors cognizable under the Dangerous Drugs Act, as amended;

10. 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

11. Cases of domestic violence against:

11.1 Women --- which are acts of gender-based violence that result, 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 of movement; and

11.2 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 to any case pending in the regular courts, said incident shall be determined in that court.

2. SETTLEMENT OF ESTATE OF DECEASED PERSONS 1. In General

1. Jurisdiction and Venue

1.1 The settlement of the estate of deceased persons shall be in the court of the place of residence of the deceased at the time of his death, whether he is a citizen or an alien.

1.2 If the deceased is an inhabitant of a foreign country, then the settlement shall be in the court of any place in which he had estate.

Note: Sec. 1, Rule 73, Rules of Court which substantially contains the foregoing rules still remain unamended after the passage of Batas Blg. 129. Said Sec. 1 still speaks of 'Court of First Instance,' instead of 'Regional Trial Court' and 'province' which in other parts of the Rules had been changed to 'place.' But under Batas Blg. 129, the jurisdiction over settlement proceedings is not limited to Regional Trial Courts but include Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, where the value of the estate does not exceed Php 200,000 outside or in Metro Manila, Php 200,000.15 Outside Metro Manila, the amount was at first fixed at Php 100,000 but this was increased to Php 200,000. After another five years, the jurisdictional amount will be Php 300,000 outside Metro Manila where the amount will become Php 400,000.16

1.3 The jurisdiction of a probate court is determined by the place of residence of the deceased person or of the location of his estate, but the matter really constitutes venue.17

1.4 Important rule

The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.18 This is to preclude different courts from assuming jurisdiction.19

1.5 The term 'resides' refers to 'actual residence' as distinguished from 'legal residence' or domicile.'20

1.6 The liquidation of the conjugal or community property of a deceased husband or wife shall be made in his or her estate proceedings, but if both spouses are deceased, then in the estate proceeding of either.21

1.7 Shari'a Courts have exclusive original jurisdiction in matters of settlement of the estate of deceased Muslims.22 2. Kinds of settlement On the basis of the form of settlement, there are three kinds:

2.1 Extrajudicial settlement;

1 1 1 1 1

B. P. Blg. 129, Secs 19 (4) and 33 (1), as amended. Rep. Act No. 7651, Sec. 5. 7 Garcia Fule v. Court of Appeals, No. L-40502, November 29, 1976, 74 SCRA 189. 8 Rules of Court, Rule 73, Sec. 1, last sentence. 9 Cuenco v. Court of Appeals, No. L-24742, October 26, 1973, 53 SCRA 360. 20 Pilipinas Shell Petroleum Corporation v. Dumlao, G. R. No. 44888, February 7, 1992, 206 SCRA 40. 5 6

2

1

2

2

Rules of Court, Rule 73, Sec. 2. Presidential Decree No. 1083, Art. 143.

2.2 Summary settlement of estates of small value; and

2.3 Judicial settlement through letters testamentary or letters of administration with or without the will annexed.

3. Extrajudicial settlement

An extrajudicial settlement may be made by the heirs of a deceased person without having to secure letters of administration.23

3.1 The following requisites must be present or followed:

3.1.1 The decedent left no will and no debts.

Note: It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.24

3.1.2 A bond equivalent to the value of the personal property of the estate is posted with the Register of Deeds.

Note: The value must be certified to under oath by the parties concerned and the bond must be conditioned upon the payment of any just claim that may be filed.25

3.1.3 The fact of settlement is published in a newspaper of general circulation once a week for three (3) consecutive weeks.

Note: No extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.26

3.2 The extrajudicial settlement may follow any one of three (3) ways:

3.2.1 Public instrument.- A public instrument is executed by all the heirs to be filed with the Registry of Deeds.

3.2.2 Action for Partition.- If the heirs cannot agree on the division of the estate, an 2

3

2

4

2 2

Rules of Court, Rule 74, Sec. 1. Ibid. 5 Ibid. 6 Rules of Court, Rule 74, Sec. 1.

ordinary action for partition may be filed.

3.2.3 Affidavit of self-adjudication.- If there is only one heir, then the heir may execute an affidavit adjudicating to himself or herself the entire estate, which affidavit shall be filed with the register of deeds.27

3.3 Minor heirs

If there are minor heirs, they may be represented by their "judicial or legal representatives duly authorized for the purpose."28 4. Summary settlement of estates of small value 4.1 When the gross value of the estate of a deceased person does not exceed Php 10,000.00, 29 upon a proper petition, the court having jurisdiction, 30 may proceed summarily to settle the estate, without the appointment of an executor or administrator, and without delay.

4.2 The petition may be filed by an interested person which should make such value appear to the court.

4.3 The hearing on the petition shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of the notice.

4.4 The notice shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Notice shall also be given to all interested persons as the court may direct.

4.5 After hearing, the court may grant, if proper, allowance of the will, if any there be, determine the persons legally entitled to participate in the estate, and apportion and divide it among them after payment of the debts of the estate.

4.6 Those who are entitled to the estate, if they are of age and with legal capacity, or by their guardians and trustees legally appointed and qualified, shall be entitled to receive their share of the estate.

4.7 The court may issue an order respecting the costs of the proceedings. 2 2 2

Ibid. Ibid. 9 Rules of Court, Rule 74, Sec. 2. 30 No longer the Court of First Instance as provided in Sec. 2, Rule 74 but a Metropolitan or Municipal Court because the value of the property does not exceed Php 200,000 for both Metro Manila and outside Metro Manila (B.P. Blg. 129, Sec. 33[1]; R.A. No. 7691, Sec. 5.). 7 8

4.8 All orders and judgments shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.

No longer the Court of First Instance as provided in Sec. 2, Rule 74 but a Metropolitan or Municipal Court because the value of the property does not exceed Php 200,000 for both Metro Manila and outside Metro Manila (B.P. Blg. 129, Sec. 33[1]; R.A. No. 7691, Sec. 5.). 5. Judicial settlement with letters testamentary or with letters of administration Settlement shall otherwise be in court in special proceedings through a full-blown procedure with either a testator or an executor managing the estate of the deceased until partition and distribution after the payment of debts, legacies and devises. 2. Probate of Wills 1. Will, explained

A will is an act whereby a person is permitted with all the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death. 31 It is otherwise called a 'last will and testament.'

1.1 It may be a notarial will with certain important requisites.

1.1.1 Every will must be in writing and executed in a language or dialect known to the testator.32

1.1.2 Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three (3) or more credible witnesses in the presence of the testator and of one another.33

1.1.3 The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.34

1.1.4 Every will must be acknowledged before a notary public by the testator and the witnesses.35

3

1

3

2

3 3 3

Civil Code, Art. 783. Civil Code, Art. 804. 3 Ibid, Art. 805, first paragraph. 4 Ibid, Art. 805, third paragraph. 5 Ibid, Art. 806.

1.1.5 If the will is not contested, only one (1) subscribing witness needs to testify; 36 if the will is contested, all subscribing witnesses and the notary must testify.37

1.2 It may be a holographic will if it is in the handwriting of the testator, but it must be entirely written, dated and signed by him.

1.2.1 It is subject to no other form, may be made in or out of the Philippines, and needs no witnesses.38

1.2.2 At least one witness should testify that the will and the signature thereon are in the handwriting of the testator.39 If the holographic will is contested, at least three (3) witnesses who know the handwriting of the testator must testify but in the absence of any competent witness, if the court deems it necessary, expert testimony may be resorted to.40 2. Time to submit to the court 2.1 Reglementary periods

2.1.1 Within twenty (20) days from knowledge of the death of the testator, the custodian of a will shall deliver it to the court having jurisdiction or to the executor named in the will.41

2.1.2 On the other hand, the executor has twenty (20) days from knowledge of the death of the testator or knowledge of the fact that he is named executor to submit the will to the court unless the will has reached the court already. Within the same period, he shall signify to the court in writing whether he accepts or refuses the trust.42

2.2 Penalties

2.2.1 A person who neglects to comply with the foregoing two provisions, without excuse satisfactory to the court, shall be fined not exceeding Php 2,000.00.

2.2.2 The custodian who refuses to comply with the order of the court to deliver the will, when he is ordered to do so, may be committed to prison until he delivers the will. 3. Procedure In The Probate of A Will 3.1 The contents of a petition for the allowance of a will are:

3

6

3

7

3 3 4 4 4

Rules of Court, Rule 76, Sec. 5. Ibid, Sec. 11. 8 Civil Code, Art. 810. 9 Ibid, Article 811; Rules of Court, Rule 76, Sec. 5. 0 Rules of Court, Rule 76, Sec. 11, second paragraph. 1 . Ibid, Rule 75, Sec. 2. 2 Ibid, Sec. 3.

3.1.1 The jurisdictional facts;

3.1.2 The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

3.1.3 The probable value and character of the property of the estate;

3.1.4 The name of the person for whom letters are prayed;

3.1.5 If the will has not been delivered to the court, the name of the person having custody of it.

Note: But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.43

3.2 Time for proving the will

The court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof.44

Note: However, the court need not go through the probate of a will that preterited a compulsory heir since preterition invalidates the will.45

3.3 Publication of notice

The court shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.46

Note: Where the petition for probate has been filed by the testator himself, no newspaper publication shall be made.47

3.4 Persons entitled to notice483.4.1 Heirs, devisees, legatees, and executors should be notified by mail or personally.

4

3

4

4

4 4 4 4

. Rules of Court, Rule 76, Sec. 2. Rules of Court, Rule 76, Sec. 3. 5 Nuguid v. Nuguid, G. R. No. L-23445, June 23, 1966, 17 SCRA 449 6 Rules of Court, Rule 76, Sec. 3. 7 Ibid. 8 Rules of Court, Rule 76, Sec. 4.

3.4.2 The mail should be deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if the places of residence be known.

3.4.3 Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.

3.4.4 If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.

3.5 Proof at hearing49

At the hearing, compliance with the provisions on notice and its publication must be shown before the introduction of testimony in support of the will. All testimony shall be taken under oath and reduced to writing.

3.6 Lost or destroyed will50

No will shall be proved as a lost or destroyed will unless:

3.6.1 the execution and validity of the same be established; and

3.6.2 the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; nor

3.6.3 unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses.

3.7 Deposition51

If none of the subscribing witnesses resides in the province, the court may, on motion, direct a deposition to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination.

3.8 Unavailable witnesses52

4

9

5

0

5 5

Ibid, Sec. 5. Ibid, Sec. 6. 1 Rules of Court, Rule 76, Sec. 7. 2 Ibid, Sec. 8.

If the subscribing witnesses are dead or insane, or none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator; the due execution of the will; and proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

3.9 Contesting a will53

Anyone appearing to contest the will must state in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the estate.

3.10 Grounds for disallowing a will54

The will shall be disallowed in any of the following cases:

3.10.1 If not executed and attested as required by law;

3.10.2 If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

3.10.3 If it was executed under duress, or the influence of fear, or threats;

3.10.4 If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

3.10.5 If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. 3. Executors and Administrators 1. Requirements For The Issuance Of Letters Testamentary And Of Letters Of Administration55

Probate proceedings may be opened by a petition for the allowance of a will and the issuance of letters testamentary, as previously discussed or letters of administration.

1.1 The petition may be opposed and a petition may at the same time be filed for letters of administration with the will annexed.56

5

3

5

4

5 5

Ibid, Sec. 10. Ibid, Sec. 9. 5 Rules of Court, Rules 78 and 79. 6 Ibid, Rule 79, Sec. 1.

1.2 The contents of a petition for letters of administration are:

1.2.1 The jurisdictional facts;

1.2.2 The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent;

1.2.3 The probable value and character of the property of the estate; and

1.2.4 The name of the person for whom letters of administration are prayed;

Note: But no defect in the petition shall render void the issuance of letters of administration.57

1.3 No person is competent to serve as executor or administrator who is (a) a minor; (b) not a resident of the Philippines; and (c) in the opinion of the court, unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.58

2. Appointment of Executors (who may become executors)59

2.1 After a will is proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by the rules. It is clear that an executor is one who is named in a will.

2.2 There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond. If no executor named qualifies, then an administrator is appointed.60 3. Appointment Of Administrators; Priorities61 Administration may be granted:

3.1 To the surviving spouse, or next of kin, or both, or to such person as such surviving spouse or next of kin, requests to be appointed, if competent and willing to serve.

3.2 To one or more of the principal creditors, if competent and willing to serve, in default of the foregoing or if the surviving spouse or next of kin neglects for thirty (30) days after the death of the 5

7

5

8

5 6 6

Rules of Court, Rule 79, Sec. 2. Ibid, Rule 78, Sec. 1. 9 Ibid, Sec. 4 0 Rules of Court, Rule 78, Section. 5. 1 Rules of Court, Rule 78, Sec. 6.

deceased to file a petition for administration or the request that administration be granted to some other person.

3.3 To such other person as the court may select, in default of the foregoing.

Note: The court may disregard the preference above enumerated in its sound discretion and its decision will not be interfered with on appeal unless it appears that it is in error.62 4. Appointment Of Special Administrators A special administrator may be appointed '(w)hen there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will." 63 The special administrator shall take possession and charge of the estate of the deceased until questions causing the delay are decided and executors or administrators appointed.

4.1 While the qualifications of a special administrator are not spelled out in the rules, the appointment should be within the sound discretion of the court and such discretion should not be a whimsical one. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator.64 However, the court is not bound to follow the order of preference set up for the appointment of a general administrator.65

4.2 Only one special administrator at a time may be appointed, since the appointment is merely temporary.66

4.3 Powers and duties

The special administrator shall take possession and preserve the goods, chattels, rights, credits, and estate of the deceased and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. He is not liable to pay any debts of the deceased unless so ordered by the court.67

4.4 The court has no power to order a special administrator to sell real property of the estate pending resolution of the issue of the appointment of the regular administrator.68

4.5 A special administrator does not have the power to close the estate because he normally does not pay the debts of the deceased. However, he can be sued. There is no express prohibition; otherwise, prescription may set in if the appointment of the regular administrator is delayed.69 6

2

Silverio, Sr. v. Court of Appeals, G. R. No. 109979, March 11, 1999, 304 SCRA 541.

6

3

Rules of Court, Rule 80, Sec. 1.

6

4

Ozaeta v. Pecson, 93 Phil. 416 [1953].

6

5

6

6

6 6 6

Ocejo v. Consul General of Spain, 67 Phil. 475 [1939]. Ozaeta v. Pecson, supra, note 64; Fernandez v. Maravilla, supra, note 13. 7 Rules of Court, Rule 80, Sec. 2. 8 Silverio, Sr. v. Court of Appeals, supra, note 62. 9 Anderson v. Perkins, No. L-15388, January 31, 1961, 1 SCRA 387.

4.6 Termination

The special administrator may be removed on grounds other than those mentioned in Rule 82. 70 When an executor or administrator is appointed, the powers of the special administrator cease. He shall immediately deliver the estate to the executor or administrator who may prosecute to final judgment suits commenced by the special administrator.71 5. Bond of Administrator or Executor 72 5.1 Before an executor or administrator enters upon the execution of his trust, he shall give a bond, in such sum as the court directs, conditioned as follows:

5.1.1 To make and return within three (3) months, a true and complete inventory;

5.1.2 To administer the estate and pay and discharge all debts, legacies, and charges on the same, or dividends thereon;

5.1.3 To render a true and just account within one (1) year, and at any other time when required by the court; and

5.1.4 To perform all orders of the court.

5.2 Further bond

The executor may serve without bond if the testator so directs, or with only his individual bond, conditioned only to pay the debts of the testator; but the court may require a further bond in case of a change in his circumstances, or for other sufficient cause.73

6. General Powers and Duties of Executors and Administrators An executor and administrator has the following powers and duties:

7

0

7

1

7 7

De Gala v. Gonzales, 53 Phil. 104 [1929]; Roxas v. Pecson, 82 Phil. 407 [1948]. Rules of Court, Rule 80, Sec. 3. 2 . Rules of Court, Rule 81. 3 Rules of Court, Rule 81, Sec. 2.

6.1 To maintain the estate in 'tenantable repair' and deliver the same in such repair to the heirs or devisees when directed by the court;74

6.2 To possess and manage the estate of the deceased for the payment of the debts and expenses of administration;75

6.3 To have access to partnership books and property where the deceased was a partner, under pain of contempt by the probate court;76 6.4 With the approval of the court, to compound or compromise with a debtor of the deceased.77 7. Inventory And Appraisal Within three (3) months after his appointment, an executor or administrator shall file a true inventory and appraisal of all the real and personal estate of the deceased, with the assistance of one or more inheritance tax appraisers, as may be ordered by the court.

7.1 Exclusions from the inventory

The articles that should not be inventoried are: (a) the wearing apparel of the surviving spouse and minor children, (b) the marriage bed and bedding, and (c) such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. They shall not be considered as assets, nor administered as such.78

7.2 Allowance to widow and family

The widow and minor or incapacitated children of the deceased, during the settlement of the estate, shall receive such allowance as are provided by law.79

7.3 Questions of title

A probate court can resolve questions of title only provisionally. All that the court can do is to determine whether the properties should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good, but if there is, then the parties, the administrator and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.80 7 7 7 7 7 7

Rules of Court, Rule 84, Sec. 2. Ibid, Sec. 3. 6 Ibid, Sec. 1. 7 Rules of Court, Rule 87, Sec. 4. 8 Rules of Court, Rule 83, Sec. 2. 9 Ibid, Sec. 3. 80 Sanchez v. Court of Appeals, G. R. No. 108947, September 29, 1997, 279 SCRA 647. 4 5

8. Sales And Mortgages The need for approval by the probate court exists only where specific properties of the estate are sold and not when only ideal and indivisible shares of an heir are disposed of.81 The sale or mortgage of specific estate property may be approved by the court under the following circumstances:

8.1 For the payment of debts

The sale or encumbrance of real property to pay the obligations of the estate, if beneficial, may be approved when personal property is not enough to pay for the obligations of the estate, or where its sale or mortgage may be injurious to those interested and where the testator has not otherwise provided.

Note: If a part of the real property cannot be sold, or otherwise encumbered without injury to those interested in the remainder, the disposition may be of the whole of the property, or so much as is necessary or beneficial under the circumstances.82

8.2 If beneficial

The court may authorize the sale of the whole or a part of said estate, although it is not necessary to pay the obligations of the estate so long as it is beneficial but such authority should not be inconsistent with the provisions of a will. The proceeds shall be given to the persons entitled to the estate in the proper proportions.83

8.3 Bond to prevent sale, etc.

Persons interested may prevent a sale, mortgage or encumbrance by giving a bond in a sum to be fixed by the court, conditioned to pay the obligations of the estate. Such bond shall be for the security of the creditors, as well as the executor or administrator.84

8.4 Regulations for granting authority to sell, mortgage, or otherwise encumber estate.

8.4.1 The executor or administrator shall file a written petition, setting forth (i) the debts due from the deceased, (ii) the expenses of administration, (iii) the legacies, (iv) the value of the personal estate, (v) the situation of the estate to be sold, mortgaged, or otherwise encumbered, and (vi) such other facts as will show that the sale, mortgage, or other encumbrance is necessary or beneficial.

8.4.2 The court shall then cause notice to the persons interested, stating the nature of the 8

1

8

2

8 8

Heirs of Pedro Escanlar v. Court of Appeals, G. R. No. 119777, October 23, 1997, 281 SCRA 176. Rules of Court, Rule 87, Sec. 2. 3 Ibid, Rule 89, Sec. 4. 4 Ibid, Sec. 3.

petition, the reason for the same, and the time and place of hearing. The court may cause further notice by publication or otherwise.

8.4.3 The court may direct the executor or administrator to give an additional bond to account for the proceeds of the sale, mortgage, or other encumbrance.

8.4.4 The court may then grant the petitions in proper cases, such part of the estate as is deemed necessary. The court may authorize the sale to be public or private, as would be most beneficial to all parties concerned.

8.4.5 If the property is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale.85

8.4.6 The transaction and the court order shall be recorded in the registry of deeds.86 9. Actions By And Against Executors And Administrators In general, executors and administrators may bring or defend actions that survive. Claims that do not survive are money claims that have to be filed in the estate proceedings.

9.1 Actions that survive are those actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal.87

9.2 Actions that do not survive are the money claims or (a) all claims for money arising from contract, express or implied, due, not due or contingent; 88 (b) all claims for funeral expenses; (c) expenses for the last sickness of the decedent; and (d) judgment for money against the decedent, which should be presented in the form of claims against the estate.89

9.3 Mortgage due estate may be foreclosed

If the deceased was a mortgagee or assignee of the right of a mortgagee, the mortgage may be foreclosed by the executor or administrator.90

9.4 Proceedings when property concealed, embezzled, or fraudulently conveyed 8

5

8

6

Rules of Court, Rule 39. Rules of Court, Rule 89, Sec. 7. 8 7 Rules of Court, Rule 87, Sec. 1. 88 These claims are specifically described as contractual money claims in the Rules of Court, Rule 3, Sec. 20.

89

9

0

Rules of Court, Rule 86, Sec. 5; Belamala v. Polinar, No. L-24098, November 18, 1967, 21 SCRA 970. Rules of Court, Rule 87, Sec. 5.

9.4.1 When a person is suspected of having concealed, embezzled, or conveyed away any of the money or chattels of the deceased, or such person possesses or knows of a document which contains evidence of or tends to disclose the right of the deceased to real or personal estate, or his last will and testament, the court may cite such suspected person to appear or to answer, and may examine him on oath91

9.4.2 If the person so cited refuses to appear and give rogatories, the court may punish him for contempt and may commit him to prison until he submits to the order of the court. The interrogatories, if any, and his answers thereto, shall be in writing and shall be filed in court.92

9.5 Rendition of account

A person entrusted by the executor or administrator with property of the deceased, may be compelled to render a full account on oath before the court.93

9.6 Embezzlement before letters issued

A person who embezzles or alienates property of the deceased before issuance of letters testamentary or of administration, is liable for double the value of the property embezzled. 94

9.7 Remedy for fraudulent conveyance by the deceased during his lifetime

The remedy may be by action of the executor or administrator or by a creditor under the following circumstances.

9.7.1 Action by executor or administrator

When there is a deficiency of assets to pay its debts, but the deceased during his lifetime conveyed property with intent to defraud his creditors, the conveyance would by law be void as against his creditors, and the subject of the attempted conveyance would be subject to attachment in his lifetime. The executor or administrator may file an action to recover such property but is not be bound to do so, unless the creditors pay for the costs and expenses thereof or give security as the court deems equitable.95

9.7.2 Action by the creditor

91

9

2

9

3

9 9

Rules of Court, Rule 87, Sec. 5.

Ibid., Sec. 6. Ibid., Sec. 7. 4 Rules of Court, Rule 87, Sec. 8. 5 Ibid., Sec. 9.

On the other hand, a creditor may file such an action in the name of the executor or administrator upon the filing by the creditor of a bond approved by the court to indemnify the executor or administrator. The creditor shall have a lien on the judgment recovered for costs and expenses as the court deems equitable.96

Note: Where the conveyance or attempted conveyance was made by the deceased in his lifetime in favor of the executor or administrator, the action of the creditor shall be filed in the name of all the creditors without need of court permission or the court and the filing of a bond.97 10. Money Claims Against The Estate; Notice To Creditors Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of court.98

10.1 Time within which claims shall be filed

In said notice, the court shall state the time for the filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. However, before an order of distribution is issued, the court may, for cause shown and on such terms as are equitable, allow a claim to be filed within a time not exceeding one (1) month.99

10.2 Publication of notice to creditors

The executor or administrator shall immediately cause the notice to be published three (3) weeks successively in a newspaper of general circulation in the province, and to be posted for the same period in four (4) public places in the province and in two (2) public places in the municipality where the decedent last resided.100

10.3 Filing copy of printed notice

Within ten (10) days after the publication and the posting, the executor or administrator shall file in court a printed copy of the notice, accompanied with an affidavit of publication setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same was printed.101

10.4 Filing of claims

The claims which must be filed under the notice are: 9

6

9

7

9 9 1 1

Ibid., Sec. 10. Rules of Court, Rule 87, Sec. 10. 8 Ibid, Rule 86, Sec. 10. 9 Ibid, Sec. 2. 00 Ibid. 01 Rules of Court, Rule 86, Sec. 4.

10.4.1 all claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent;

10.4.2 all claims for funeral expenses and expenses for the last sickness of the decedent; and

10.4.3 judgment for money against the decedent.102

Note: Under the 1997 Rules of Civil Procedure, an action for a contractual money claim against a defendant who dies before entry of final judgment, must proceed until entry of final judgment. A favorable judgment obtained by the plaintiff shall be enforced as a money claim against the estate of the defendant which shall be filed in the estate proceeding.103

10.5 Time bar

Claims that are not filed within the time limited in the notice, are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants.

10.6 Set off

Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime.- A debtor may set forth in an action by the executor or administrator against him, by answer the claims he has against the decedent, instead of presenting them independently as a claim against the estate, and mutual claims may be set off against each other in such action. Claims not yet due, or contingent, may be approved at their present value.104

10.7 How to file a claim105

A claim may be filed with the clerk of court with the necessary vouchers and supporting affidavits, serving a copy thereof on the executor or administrator.

10.7.1 If the claim is not due, or is contingent, it must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant.106

1 1 1

1

Ibid, Sec. 5. Rules of Court, Rule 3, Sec. 20. 04 Rules of Court, Rule 86, Sec. 5. 105 Ibid, Sec. 9. 02 03

06

Ibid.

10.7.2 The court, in its discretion, and as a matter of convenience, may order all the claims to be collected in a separate folder.107

10.8 Disposition of admitted claim

Any claim admitted by the executor or administrator shall immediately be submitted by the clerk to the court who may approve the same without hearing; but the court may order that known heirs, legatees, or devisees be notified and heard.108

10.9 Trial of contested claim

If an heir, legatee, or devisee opposes the claim, the court may allow him fifteen (15) days to answer the claim. Upon the filing of an answer or upon the expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.109

10.10 Judgment appealable

The judgment of the court approving or disapproving a claim, is appealable. A judgment against the executor or administrator that he pay shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.110 11. Payment Of Debts If there are sufficient assets to pay the debts, the executor or administrator shall pay the same within the time limited for that purpose.111

11.1 Source of payment as designated by the testator

The debts of the testator, expenses or administration, or family expenses, shall be paid according to the provisions of the will; but if the provisions are not sufficient, such part of the estate not disposed of by will, if any, shall be appropriated for that purpose.112

11.2 Personalty first chargeable for debts, then realty

The personal property of the deceased shall first be chargeable with the payment of debts and expenses; but if it is not sufficient, or its sale would be detrimental to the participants of the estate, 1

07

1

08

1 1 1 1

Rules of Court, Rule 86, Sec. 9. Ibid, Sec. 11. 09 Ibid, Secs. 11 and 12. 10 Rules of Court, Rule 86, Sec. 13 11 Rules of Court, Rule 88, Sec. 1. 12 Ibid, Sec. 2.

the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered by the executor or administrator, after obtaining the authority of the court therefor.113

11.3 Preference of payment if estate insolvent

If the assets are not sufficient for the payment of debts, they shall be paid in accordance with the provisions of Articles 1059 and 2239 to 2251 of the Civil Code on concurrence and preference of credits.114

11.4 When and how claim proved outside the Philippines against insolvent resident's estate paid

If claims have been duly proven in another country against the estate of an insolvent who was at the time of his death an inhabitant of the Philippines, and that the local executor or administrator knew of such claims and an opportunity to contest their allowance, the court shall add a certified list of such claims to the list of claims proved in the Philippines so that a just distribution of the whole estate may be made, but the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of the deceased there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.115

11.5 Time for paying debts and legacies

The executor or administrator shall pay the debts and legacies of the deceased within a period of time fixed by the court, which shall not exceed one (1) year, but the court may, on motion of the executor or administrator and after hearing, extend the time as the circumstances of the estate require not exceeding six (6) months for a single extension, but the whole period allowed to the original executor or administrator shall not exceed two (2) years.116 12. Accountability And Compensation Of Executors And Administrators Except as otherwise expressly provided in the following sections, every executor or administrator is chargeable (a) with the whole of the estate of the deceased which has come into his possession, at the value of the appraisement contained in the inventory; (b) with all the interest, profit, and income of such estate; and (c) with the proceeds of so much of the estate as is sold by him, at the price at which it was sold.117

12.1 Increase or decrease in value

No executor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. 1

13

1

14

1 1 1

Ibid, Sec. 3. Rules of Court, Rule 88, Sec. 7. 15 Rules of Court, Rule 88, Sec. 10. 16 Ibid, Sec. 15. 17 Rules of Court, Rule 85, Sec. 1.

12.1.1 He must account for the excess when he sells any part of the estate for more than the appraised value, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made.

12.1.2 If he settles any claim against the estate for less than its nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement.118

12.2 Accountable for income from realty used by him

If the executor or administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent. If the parties do not agree, the amount may be ascertained by the court, whose determination shall be final.119

12.3 Accountable for delay

When an executor or administrator unreasonably delays to collect the debts, sell estate of the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss, the damage sustained may be charged against him, and he shall be liable therefor on his bond.120

12.4 Expenses and fees allowed executor or administrator121

An executor or administrator shall be allowed the necessary expenses in the care, management, and settlement of the estate, and for his services, four pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devisees, of :

1

18

1

19

1 1

12.4.1

2% of the first Php 5,000;

12.4.2

1% of more than Php 5,000 but less than Php 30,000;

12.4.3

1/2% of more than Php 30,000, but less than Php 100,000; and

12.4.4

1/4% of more than Php 100,000.

Ibid, Sec. 2. Rules of Court, Rule 85, Sec. 4. 20 Ibid, Sec. 5. 21 Ibid, Sec. 1.

Note: But in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed to be taken, the allowance may be re-examined on appeal.

12.5 Two or more executors or administrators

If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively.122

12.6 Attorney's fees prohibited

When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him,123 but he may employ counsel.124

12.7 Compensation provided in the will

When the deceased by will makes some other provision for the compensation of his executor, it shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will.125

12.8 When executor or administrator to render account

Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration, unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate. He shall render such further accounts as the court may require until the estate is wholly settled.126

12.9 Examinations on oath with respect to account

The heirs, legatees, distributees, and creditors of the estate and the executor or administrator may be examined on oath on any matter relating to an administration account.127

1 1

Rules of Court, Rule 85, Sec. 1. Ibid, Sec. 7. 124 Dacanay v. La Mancomunidad de Telepuis, 72 Phil. 50 [1941]; Aldamiz v. Judge of the Court of First Instance of Mindoro, 85 Phil. 228 [1949]. 22 23

1

25

1

26

1

Rules of Court, Rule 85, Sec. 7. Ibid, Sec. 8. 27 Ibid, Sec. 9.

12.10 Notice to examine the account of the executor or administrator

Before the account of an executor or administrator is allowed, notice shall be given to persons interested of the time and place of examining and allowing the same; and such notice may be given personally or by advertisement in a newspaper or newspapers, or both, as the court directs. 128 A person liable as surety in respect to such account may, upon application, be admitted as party to such accounting.129

4. Distribution and Partition130

The distribution of the estate can only be made after strict compliance with the provisions in Rule 90, Rules of Court.

1. When Distribution Is Made

1.1 Payment of obligations required

The estate may be distributed only if the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, have been paid. (Note: What is provided in the law is only an estate tax payable by the heir has already been abrogated.)

1.1.1 The court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession.

1.1.2 If there is a controversy as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.131

1.2 Advance distribution

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.132 1

28

1

29

1 1 1

Rules of Court, Rule 85, Sec. 10. Ibid, Sec. 11. 30 Rules of Court, Rule 90. 31 Rules of Court, Rule 90, Sec. 1, first and second paragraphs. 32 Ibid, second paragraph.

2. Partial distribution, without paying estate taxes A judge commits a grave abuse of discretion when he orders a partial distribution of the estate without the payment of estate taxes.133 3. Expenses of partition Expenses of partition may be paid by the executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, enforceable by execution.134 4. Project of Partition The practice in this jurisdiction is to prepare and present a project of partition to the court. It is merely a proposal for the distribution of the hereditary estate and determine the persons entitled thereto.135 5. Final order of partition; recording the order of partition of the estate Certified copies of final orders and judgments of the court relating to the real estate or partition thereof shall be recorded in the registry of deeds.136

3. GUARDIANS

1. Necessity For Guardianship

A court will have no jurisdiction to render judgment against one adjudged physically and mentally incompetent to manage her affairs where no guardian was appointed upon whom summons and notice of the proceedings might be served.137

1. The 'incompetent' as the subject of guardianship.- The incompetent includes (1) persons suffering from the penalty of civil interdiction; (2) hospitalized lepers; (3) prodigals; (4) deaf and dumb who are unable to read and write; (5) those who are of unsound mind even though they may have lucid intervals; and (6) those who are not of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.138 1

33

1

34

1

36

1

37

Vera v. Navarro, No. L-27745, October 18, 1977, 79 SCRA 408. Rules of Court, Rule 90, Sec. 3. 135 Moran, Comments on the Rules of Court, 1997 ed., Vol. 3, pp. 688-9.

1

Rules of Court, Rule 90, Sec. 4. Gorostiaga v. Sarte, 68 Phil. 4 [1939]. 38 Rules of Court, Rule 92, Sec. 2.

2. Parents as guardians

When the property of the child under parental authority is worth Php 2,000.00 or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than Php 2,000.00, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by the rules. For good reasons the court may, however, appoint another suitable person.139 2. Jurisdiction and Venue 1. Where to file petition for guardianship

Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent.140

2. Transfer of venue

If the ward transfers his bona fide residence, the court may transfer the guardianship case to the court of the place of his residence wherein he has acquired real property, and additional court fees are not required.141 3. Petition For Guardianship 1. Who may file

Any relative, friend or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent.142

2. Contents of petition

The petition shall allege:

(1) The jurisdictional facts;

(2) The minority or incompetency;

(3) The names, ages and residences of the relatives of the minor or incompetent, and of the 1

39

1

40

1 1

Ibid, Rule 93, Sec. 7. Rules of Court, Rule 93, Sec. 1. 41 Ibid, Rule 92, Sec. 3. 42 Rules of Court, Rule 93, Sec. 1.

persons having him in their care;

(4) The probable value and character of his estate; and

(5) The names of the person for whom letters of guardianship are prayed.143

3. Notice of hearing

Reasonable notice of the hearing of the petition shall be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself. The court may direct other general or special notice to be given.144

4. Grounds for opposition

The petition may be opposed on the grounds of (a) majority of the alleged minor; (b) competency of the alleged incompetent; or (c) unsuitability of the proposed guardian.145

5. Order

At the hearing, the alleged incompetent must be present as much as possible. Evidence will be heard and if it be proved that the person in question is a minor or incompetent, the court shall appoint a suitable guardian of his person or estate, or both.146

6. Guardian for the estate of a nonresident

On notice, by publication or otherwise, and after the hearing, a guardian may be appointed for the estate in the Philippines of a nonresident minor or incompetent.147 4. Guardian's Bond The guardian shall give a bond conditioned: (a) to make a true and complete inventory within three months; (b) to manage and dispose of the estate, and to provide for the proper care, custody and education of the ward; (c) to render a true and just account; and (d) to perform all orders of the court.148

1. New bond 1

43

1

44

1 1 1 1

Rules of Court, Rule 93, Sec. 2. Ibid, Sec. 3. 45 Ibid, Sec. 4. 46 Rules of Court, Rule 93, Sec. 5. 47 Ibid, Rule 93, Sec. 6. 48 Rules of Court, Rule 94, Sec. 1.

A new bond may be required and the old sureties discharged whenever it is deemed necessary, after due notice to interested persons, when no injury can result therefrom to those interested in the estate.149

2. Bond to be filed; actions thereon

Every bond of a guardian shall be filed in the office of the clerk of the court. In case of the breach of a condition thereof, it may be prosecuted in the same proceeding or in a separate action.150

5. General Powers and Duties

The guardian has the care and custody of the person of the ward and/or the management of his estate. The guardian should pay the ward's just debts from his personal property and income of his real estate; if insufficient, out of the sale or encumbrance of real estate as authorized by the court. The estate should be managed frugally.151

1. A person suspected of embezzling or concealing property of the ward may be asked to appear for examination.152

2. After making an inventory after three (3) months, the guardian is required to file an inventory and accounting annually.153

3. Compensation and expenses

The guardian is allowed reasonable expenses and such compensation as the court deems just, not exceeding 15% of the net income of the ward.154

4. Grounds for removal

A guardian may be removed when (a) he becomes insane, (2) is otherwise incapable of discharging his trust, (3) is unsuitable therefor, (4) has wasted or mismanaged the estate, or (5) has failed for thirty (30) days to render an account or make a return.155

1 1 1

Ibid, Sec. 2. Rules of Court, Rule 94, Sec. 3. 51 Rules of Court, Rule 96, Sec. 4. 152 Ibid, 6, Sec. 6. 49 50

1

53

1

54

1

Ibid, Secs. 7 and 8. Rules of Court, Rule 96, Sec. 8. 55 Ibid, Rule 97, Sec. 2.

5. Advanced age

The conclusion by the trial court that the guardian of advanced age is not fit to continue, is not to be disturbed, particularly with his delay in making an accounting and filing an inventory. While age alone is not a controlling criterion, it may be a factor for consideration.156 6. Sale or encumbrance: 1. Real property of the ward may be sold or encumbered by authority of the court upon a verified petition when the income is not sufficient to maintain the ward and his family or to educate him, or when it is for his benefit that the property be sold, mortgaged or otherwise encumbered and the proceeds put out at interest or invested in some productive security, or in the improvement or security of other real estate of the ward.157

2. Bond for the sale

The original bond of the guardian shall answer for the proceeds of the sale, but the court may require an additional bond.158 The order to sell is valid for one (1) year.159

3. A court order authorizing the sale of a ward's property, is subject to appeal, not certiorari and mandamus.160 7. Petition for termination of Guardianship 1. A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may file a verified petition to have his present competency judicially determined. If it be found after hearing that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease.161

2. Grounds for removal

A guardian may be removed when (a) he becomes insane, (b) is otherwise incapable of discharging his trust, (c) is unsuitable therefor, (d) has wasted or mismanaged the estate, or (e) has failed for thirty (30) days to render an account or make a return.162

3. Other termination

156

1

57

1

58

1 1 1 1

Francisco v. Court of Appeals, No. L-57438, January 31, 1984, 127 SCRA 371.

Rules of Court, Rule 95, Sec. 1. Ibid, Sec. 4. 59 Ibid. 60 . Lopez v. Teodoro, 86 Phil. 499 [1950]. 61 Rules of Court, Rule 97, Sec. 1. 62 Rules of Court, Rule 97, Sec. 2.

Marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. Upon the application of the ward or otherwise, the guardians may be discharged if the guardianship is no longer necessary.163

4. Advanced age

The conclusion by the trial court that the guardian of advanced age is not fit to continue, is not to be disturbed, particularly with his delay in making an accounting and filing an inventory. While age alone is not a controlling criterion, it may be a factor for consideration.164

5. Guardianship court

The guardianship court cannot adjudicate title.165

1

63

1

64

1

Ibid, Sec. 3. Francisco v. Court of Appeals, supra, note 156. 65 Parco v. Court of Appeals, G. R. No. L-33152, January 30, 1982, 111 SCRA 262.

4. ADOPTION 1. Governing Laws

1. The basic governing law on domestic adoption is found in Republic Act No. 8552, which is "An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children." It was approved on February 25, 1998. It took effect fifteen (15) days after its complete publication in a newspaper of general circulation in the Official Gazette.

2. On December 2, 1998, Rules and Regulations to Implement the Domestic Adoption Act of 1998 were promulgated to govern the adoption of Filipino children within the Philippines.

3. Foreign adoptions are governed by Republic Act No. 8043, which is "An Act Establishing the Rules to Govern Inter-Country Adoption of Filipino Children," approved on June 2, 1995.

4. Prior laws on adoption include provisions in the Child and Youth Welfare Code (Presidential Decree No. 603), the Family Code, and Executive Order No. 91.

5. The Family Code expressly repealed Articles 17-19, 27-31, 39-42 of the Civil Code and Articles 27-29, 31, 33 and 35 of Presidential Decree No. 603.

6. The Civil Code provisions, however, were expressly repealed by the provisions of P.D. No. 603, which took effect in 1975, or six months after its approval on December 10, 1974.

7. About six months before the Family Code was signed by President Corazon C. Aquino as Executive Order No. 209 on July 6, 1987, she promulgated Executive Order No. 91 on December 23, 1986. It was published in the Official Gazette on January 12, 1987. It should have taken effect fifteen (15) days thereafter or on January 27, 1987.

8. Republic Act No. 8552 provides that any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistent with its provisions is repealed, modified or amended accordingly.166 The provisions of Rules 99 and 100 in the Rules of Court should thus be considered amended.

2. Petition for Adoption

1. Who may adopt

Those who may adopt are enumerated in Sec. 7 of Rep. Act No. 8552, viz: 1

66

Sec. 26, Republic Act No. 8552, Sec. 26.

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family.

Note: The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent.

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or

(iv) the guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

(c) Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.

2. Jurisdictional Venue

A petition for adoption shall be filed in the Regional Trial Court of the place in which the petitioner resides.167Adoption now falls under the original and exclusive jurisdiction of the Regional Trial Court.168

3. Subjects of adoption

Who may be adopted are enumerated in Sec. 8 of Rep. Act No. 8552.

4. Aliens

Aliens are now allowed to adopt. For a time, under the Family Code repealing the provisions in the Civil Code, aliens were not allowed to adopt. Those who possess the same qualifications as Filipino nationals upon the following conditions:

4.1 That his/her country has diplomatic relations with the Republic of the Philippines.

4.2 That he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered.

4.3 That he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter.

4.4 That the requirements of residency and certification of the alien's qualification to adopt in his/her country may be waived by the following:

4.4.1 a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or

4.4.2 one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

4.4.3 one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth consanguinity or affinity of the Filipino spouse.

5. Joint Adoption 1

67

1

68

Rules of Court, Rule 99, Sec. 1. Batas Blg. 129, amending Sec. 19 (7).

Husband and wife are required to adopt except (a) if one spouse seeks to adopt the legitimate son/daughter of the other; (b) if one spouse seeks to adopt his/her own illegitimate son/daughter, provided that the other spouse has signified his/her consent thereto; and (c) if the spouses are legally separated from each other.169

6. Age Difference

The age difference should be 16 years between the adopter and the adopted, provided that it may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee's parent.170

7. Procedure

7.1 Contents of petition

The petition should contain the same allegations in a petition for guardianship, to wit:

(1) The jurisdictional facts;

(2) The qualifications of the adopter;

(3) That the adopter is not disqualified by law;

(4) The name, age, and residence of the person to be adopted and of his relatives or of the persons who have him under their care;

(5) The probable value and character of the estate of the person to be adopted.

7.2 Required consent

Under Sec. 9, Republic Act No. 8552, written consent of the following is required:

(1) The adoptee, if ten (10) years of age or over.

(2) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child.

1

69

1

70

Rep. Act No. 8552, Sec. 7. Rep. Act No. 8552, Sec. 7 (a).

(3) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any.

(4) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any.

(5) The spouse, if any, of the person adopting or to be adopted.

7.3 Order for hearing

If the petition and consent are sufficient in form and substance, and a favorable case study has been made, as hereafter mentioned, the court, by an order, shall fix the date and place of the hearing which shall not be more than six (6) months after the issuance of the order.171

7.4 Publication of order

The order shall direct that a copy thereof be published before the hearing once a week for three (3) successive weeks in a newspaper of general circulation in the province.

7.5 Case Study

No petition for adoption shall be set for hearing unless a licensed social worker of the Department, the social service office of the local government unit, or any child-placing or child-caring agency has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report and recommendations on the matter to the court.

7.6 Birth registration

At the time of preparation of the adoptee's case study, the social worker concerned shall confirm with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, the social worker shall ensure that the adoptee is registered.

7.7 Legally available

The case study shall establish that the adoptee is legally available for adoption and that the documents to support this fact are valid and authentic. Further, the case study of the adopter shall ascertain his genuine intentions and that the adoption is in the best interest of the child.

1

71

Rules of Court, Rule 99, Sec. 4.

7.8 Intervention by DWSD

The DWSD shall intervene on behalf of the adoptee if it finds, after the case study, that the petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the Department.172

7.9 Supervised Trial Custody

No petition for adoption shall be finally granted until the adopter/s has/have been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter/s.

(a) The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopters, they must complete the six (6)-month trial custody except for those enumerated in Sec.7(b)(i)(ii)(iii).

(b) If the child is below seven (7) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the Department, the prospective adopter shall enjoy all the benefits to which biological parents are entitled from the date the adoptee is placed with the prospective adopter.173

7.10 Decree of adoption

If, after the publication of the order of hearing, no opposition has been interposed, and after consideration of the case studies, the qualifications of the adopter, the trial custody report, and the evidence submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered. The decree shall state the name by which the child is to be known 174which shall be effective as of the date the original petition was filed.

Note: This provision shall also apply in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee.175

8. Civil Registry Record

An amended certificate of birth, without any notation that it is an amended issue, shall be issued by the Civil Registry, attesting to the fact that the adoptee is the child of the adopter by being registered with his/her surname. The original certificate of birth shall be stamped 'cancelled' with the annotation of the issuance of 1

72

1

73

1 1

Rep. Act No. 8552, Sec. 11. Rep. Act No. 8552, Sec. 12. 74 Rep. Act No. 8552, Sec. 13. 75 Ibid.

an amended birth certificate in its place and shall be sealed in the civil registry records176

9. Confidential Nature of Proceedings

All hearings in adoption cases are confidential and shall not be open to the public. All records, books, and papers relating to the adoption cases in the files of the court, the DWSD, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. The court may authorize the necessary information to be released, if it is for the best interest of the adoptee and the disclosure is necessary, restricting the purposes for which it may be used.177

10. Service of judgment

The judgment shall be served by the clerk on the civil registrar. 3. Rescission of Adoption 1. Grounds for rescission

Upon petition of the adoptee, with the assistance of the DSWD if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counselling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.178 1 1

178

76

Rep. Act No. 8552, Sec. 14. Rep. Act No. 8552, Sec. 15. 3. Rescission of Adoption 77

1. Grounds for rescission

Upon petition of the adoptee, with the assistance of the DSWD if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counselling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.178

2. Who may file

A minor or other incapacitated person may, through a guardian or guardian ad litem, file the petition for rescission of adoption. Under Rep. Act No. 8552, Sec. 19, adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

3. Time to file petition

The petition must be filed within five (5) years following attainment of majority, or following recovery from

2. Who may file

A minor or other incapacitated person may, through a guardian or guardian ad litem, file the petition for rescission of adoption. Under Rep. Act No. 8552, Sec. 19, adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

3. Time to file petition

The petition must be filed within five (5) years following attainment of majority, or following recovery from incompetency.179

4. Procedure

incompetency.179

4. Procedure

The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct. After trial, if the court finds the allegations of the petition to be true, the court shall render judgment ordering rescission, with or without costs, as justice requires.

5. Service of judgment

A certified copy of the judgment shall be served upon the civil registrar concerned. Within thirty (30) days from rendition of the judgment, he shall enter the action in the civil register.180

Footnotes

178. Rep. Act No. 8552, Sec. 19.

179. Rules of Court, Rule 100, Sec. 5.

180. Rules of Court, Rule 100, Sec. 4.

1

79

Rules of Court, Rule 100, Sec. 5.

The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct. After trial, if the court finds the allegations of the petition to be true, the court shall render judgment ordering rescission, with or without costs, as justice requires.

5. Service of judgment

A certified copy of the judgment shall be served upon the civil registrar concerned. Within thirty (30) days from rendition of the judgment, he shall enter the action in the civil register.180 4. Inter-Country Adoption (Rep. Act No. 8043): 1. Adoption by aliens

The Family Code had provided that adoption by aliens of Filipino children, while generally prohibited by the Code, shall be authorized in inter-country adoption as may be allowed by law.

2. The law and the implementing rules and regulations

The Inter-Country Adoption Act was thereafter passed on June 7, 1995 and took effect fifteen days after publication in two newspapers of general circulation.. Its Implementing Rules and Regulations was passed by the Inter-Country Adoption Board (ICAB) which was thereby created. The implementing rules, which were patterned after the 1993 Hague Convention, became effective on January 17, 1996. It has been observed that the implementing rules contain provisions which are adopted from the Hague Convention but are not authorized by the law.

3. The process

The process of inter-country adoption refers to the process of adopting a Filipino child by a foreigner or by a Filipino citizen permanently residing abroad where the petition is filed. The supervised child custody is undertaken and the decree of adoption is issued outside the Philippines.

4. A legally-free child

For a child to be placed under the coverage of the Inter-Country Adoption Law, he must be legally-free which means that the child has been voluntarily or involuntarily committed to the DSWD in accordance with P.D. No. 603 and the necessary documents submitted to the ICAB.

5. Adopters

The qualifications for adopters are more stringent than the qualifications for adopters in domestic adoption. 1

80

Rules of Court, Rule 100, Sec. 4.

For one, an adopter must at least be 27 years of age aside from the 16-year difference between the adopter and the adopted.

6. Application

An application for inter-country adoption may be filed with the Regional Trial Court having jurisdiction over the child or with the ICA Board, through an intermediate agency in the country of the prospective or adoptive parents.

7. Functions of the RTC

The Regional Trial Court appears merely to receive applications from foreign adoption agencies, evaluate and assess the qualifications of the proposed adopter, and pursuant to the implementing rules, the court must submit its findings and the application papers to the ICAB. The supervised trial custody is conducted and the decree of adoption is issued by the court in the place of the adopter abroad.

8. Resident Aliens

Aliens who permanently reside in the Philippines are not qualified to become adopters under the InterCountry Adoption Act. However, under the Domestic Adoption Act, they are qualified to adopt.

8.1 Art. 184, Family Code provides that an alien cannot adopt under Philippine law except '(a) a former Filipino citizen who seeks to adopt a relative by consanguinity; and (b) one who seeks to adopt the legitimate child of his or her Filipino spouse.'

8.2 Where one of the spouses is an alien, the adoption cannot be allowed. 181

9. Case rulings

9.1 Where one of the spouses is an alien, they are disqualified to adopt under Philippine laws. 182

9.2 Husband and wife must jointly adopt. 183 9.3 Non-resident aliens cannot adopt. 184 1 182

81

Executive Order No. 91, paragraph 2, December 17, 1986. Republic v. Court of Appeals and Hughes, G.R. No. 100835, October 26, 1993, 227 SCRA 401.

183

1

84

Republic v. Court of Appeals and Hughes, G.R. No. 100835, October 26, 1993, 227 SCRA 401.

Brehm v. Republic, G.R No. L-18566, September 30, 1963, 9 SCRA 172.

5. CUSTODY OF MINORS 1. Jurisdiction A petition for the custody of minors is also provided in Section 1, Rule 99 which provides for a petition for adoption. The petition for custody of children is now within the exclusive original jurisdiction of Family Courts, as provided in Sec. 5(b), Family Courts Act of 1997, or Rep. Act No. 8369.

2. Children Under Seven Years of Age Under Article 213, second paragraph Family Code, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Under Pres.Decreee 603, Art. 17, the age of the child was five years of age, reduced from the Civil Code provision of seven years of age. Now it is back to seven years of age under the Family Code.

1. Formerly, under the Civil Code, the provision was that no mother should be separated from her child under seven years of age. 185The change emphasizes the fact that it is the welfare of the child that is paramount.

2. This rule, however, is not absolute. 186

3. Child Abuse

Complaints on cases of unlawful acts committed against children under the Child Abuse Act may be filed by (a) the offended party, (b) parents or guardians, (c) ascendant or collateral relative within the third degree of consanguinity; (d) officer, (e) social worker or representative of a licensed child-caring institution; (f) officer or social worker of the DSWD; (g) barangay chairman, or (g) at least three (3) concerned responsible citizens where the violation occurred. 187

185

Civil Code, Article 363, second paragraph.

Espiritu v. Court of Appeals, G.R. No. 115640, March 15, 1995, 242 SCRA 362. For cases on custody, Orda v. Court of Appeals, G.R. No. 92625, December 26, 1990; 192 SCRA 768; Luna v. Intermediate Appellate Court, No. L-68374, June 18, 1985, 137 SCRA 7. 186

187

Rep. Act No. 7192, Sec. 27.

1. Protective Custody

The child shall be immediately placed under the protective custody of the DSWD pursuant to Executive Order No. 56, series of 1986. Custody proceedings shall be in accordance with the provisions of Presidential Decree No. 603. 188

2. Special Court Proceedings

Cases involving violations of Rep. Act No. 8369 shall be heard in the chambers of the Family Court Judge. 189

3. When parents are separated

The question as to the care, custody and control of a child or children of parents who are divorced or separated, may be brought before a Regional Trial Court by petition or as an incident to any other proceeding.

3.1 Award of custody

After hearing, the court shall award the care, custody and control of each child as will be for its best interest.

3.2 Choice of the child

The child who is over ten (10) years of age, may choose which parent he/she prefers to live with, unless the parent so chosen is unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty.

3.3 Other designations

If both parents are unfit, the court may designate other persons or an institution to take charge of the child, such as the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person.

3.4 Support

The court may order either or both parents to support or help support the child, 1

88

1

89

Ibid, Sec. 28. Ibid, Sec. 30.

irrespective of who may be its custodian. The fact that the father has recognized the child may be a ground for ordering him to give support, but not for giving him custody of the child. 190

3.5 Visitation or temporary custody

The court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable.

3.6 Appeal

Either parent may appeal from an order made in accordance with the provisions of Section 6, Rule 99.

3.7 Rule of thumb

Once more, no child under seven years of age shall be separated from its mother, unless the court finds that there are compelling reasons therefor. 4. Special Provisional Remedies In cases of violence among immediate family members living in the same domicile or household, the law now has special provisional remedies.

1. Restraining Order

Family Court may issue a restraining order against the accused or defendant upon a verified application by the complainant or the victim for relief from abuse.

2. Temporary Custody

The court may also order the temporary custody of children in all civil actions for their custody.

3. Support Pendente Lite The court may also order support pendente lite, including deduction from the salary and use of conjugal home and other properties in all

190

David v. Court of Appeals, G.R. No.111180, November 16, 1995, 250 SCRA 82

5. Foster Care Provisions on foster care are to be found in Articles 67 to 70, Presidential Decree No. 603. Foster care is to be preferred to institutional care. No child below nine (9) years of age shall be placed in an institution. 192

6. Dependent, Abandoned Or Neglected Children

These types of children are defined in Presidential Decree No. 603, Art. 141. A verified petition for their involuntary commitment may be filed. 193

1. Involuntary commitment

For various provisions on the procedure for involuntary commitment, such as the contents of the petition, verification, order to set time for hearing, summons, when not necessary, representation of child, duty of fiscal, hearing, commitment of child, when child may stay in his own home, termination of rights of parents, authority of person, agency or institution, change of custody, refer to Articles 142-153, Presidential Decree 603.

2. Voluntary commitment

Provisions on voluntary commitment which should be in writing, legal custody, visitation, report, temporary custody of children, prohibited acts, report of person or institution, refer to Articles 154 to 159, Presidential Decree 603.

3. Various other provisions

Other significant provisions in Presidential Decree No. 603 refer to:

Art. 159. Temporary Custody of Child

Art. 160. Prohibited Acts of Leaving an Institution

Art. 161. Duty to Report Abandonment

Art. 162. Adoption of Dependent or Abandoned or Neglected Child 192

Pres. Decree No. 603, Article 68. civil actions for support.

193

. Pres. Decree No. 603, Article 142.

Art. 163. Restoration of Child After Involuntary Commitment

Art. 164. Restoration After Voluntary Commitment

Art. 165. Removal of Custody

Art. 166. Report of Maltreated or Abused Child

Art. 167. Freedom from Liability of Reporting Person or Institution.

4. Special Children

A child who appears to be mentally retarded, physically handicapped, emotionally disturbed, or mentally ill, and needs institutional care but his parents or guardians are opposed thereto, a petition for commitment of the child may be filed. 194 Provisions on venue, contents of petition, order of hearing, disposition of property or money of the committed child, children with cerebral palsy, discharge of a child judicially committed, discharge of child voluntarily committed, report on conduct of child, and related provisions, refer to Articles 178 to 204, P.D. 603.

6. HABEAS CORPUS 1. Definition and Nature Basically, it is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. The Latin term habeas corpus which literally means "you have the body," is a high prerogative writ, of ancient commonlaw origin, the great object of which is the liberalization of those who may be imprisoned without sufficient cause. 2. Function and Scope of Writ 1

94

Pres. Decree No. 603, Article 177

The writ of habeas corpus generally extends to all cases of illegal confinement or detention by which a person is (1) deprived of liberty, or (2) the rightful custody of a person is withheld from the person entitled thereto. 195 The writ of habeas corpus is no longer available to one who is already out on bail. 196 3. Grounds for Relief 1. Deprivation of fundamental or constitutional rights

There is restraint of liberty where one is deprived of freedom of action, such as the freedom of locomotion. 197

2. Lack of jurisdiction of the court to impose the sentence

A person may be detained on the basis of a void judicial order, such as there the court issuing it had no jurisdiction of the crime charged, or of the place where the crime was allegedly committed, or of the person of the accused 198 or where the court had no jurisdiction over the subject matter. 199

3. Excessive penalty The writ of habeas corpus also issues when a bond given by the accused entitled thereto is not admitted, or excessive bond is required, 200 or the penalty imposed by the court is not provided by law. 201 4. Power to Grant Writ; Enforceability The writ may be issued by the Supreme Court or by the Court of Appeals or any member thereof, enforceable anywhere in the Philippines, returnable to the same court or any member thereof or to the RTC (CFI) or any judge thereof for hearing and decision. 202 5. Requisites of application If the detention is by an officer, the writ shall be directed to him, commanding him to bring the body of the person restrained of liberty before the court at the time and place specified. If the detention is by a person other than an officer, then the writ shall be directed to an officer commanding him to the same effect and to summon the person restraining. The respondent will be asked to explain the cause of the detention. 203 6. Procedure (Issuance of writ and return) If the writ if issued by an RTC judge, it is returnable only to himself and enforceable only within his judicial district (now region) 204 1 1 1 1 1 2 2 2

Rules of Court, Rule 102, Sec. 1. Zacarias vs. Cruz, G.R. No. L-25899, November 29, 1969, 30 SCRA 729. 97 Villavicencio v. Lukban, 39 Phil. 778 [1919]. 98 Malinao v. Raveles, 108 Phil. 1159 [1960]. 99 Makapagal v. Santamaria, 55 Phil. 418 [1930]. 00 In re: McCullough Dick, 38 Phil. 41 [1918]. 01 Llobrera v. Director of Prisons, 87 Phil. 179 [1950]. 02 Rules of Court, Rule 102, Sec. 2. 203 Rules of Court, Rule 102, Sec. 6. 95 96

204

Rules of Court, Sec. 2.

7. Discharge of Person Detained When the prisoner is unlawfully restrained, the court or judge shall order his discharge which shall not be effective until a copy of the order is served on the officer or person detaining the prisoner. If such officer or person does not desire to appeal, the prisoner shall be forthwith released. 205

7. ESCHEATS

1. Escheats, Meaning of

Escheat, a term of French or Norman derivation meaning chance or accident, is the reversion of property to the State when the title thereto fails from defect of an heir. It is the falling of a decedent's estate into the general property of the State. 2. Procedure 1. When filed

A petition to escheat property is filed when a person dies intestate, leaving behind real or personal property but without an heir. 206

2

05

2

06

Rules of Court, Sec. 15. Rules of Court, Rule 91, Sec. 1.

2. Who files petition

The petitioner is the Solicitor General or his representative in behalf of the Republic of the Philippines. 207

3. Where filed

The petition is filed in the Regional Trial Court where the deceased last resided or in which he had property if he resided out of the Philippines. 208

4. Contents of petition

The petition shall set forth the facts and pray that the estate of the deceased be declared escheated. 209

5. Order of Hearing

The court shall fix a date and place for the hearing of the petition, which date shall not be more than six months after the rendition of the order. 210

6. Publication

The order shall also direct that a copy thereof shall be published at least once a week for six (6) successive weeks in some newspaper of general circulation in the province as the court deems best. 211

7. Judgment

After hearing, the court shall adjudge the properties escheated after payment of just debts and charges, and the properties shall be assigned pursuant to law as follows:

7.1 The personal estate shall be assigned to the municipality or city where the deceased last resided in the Philippines. 207

Ibid.

2

08

2

09

2 2

Ibid. Rules of Court, Rule 91, Sec. 1. 10 The Rules use the word 'entry' but it means rendition. 11 Rules of Court, Rule 91, Sec. 1.

7.2 The real estate shall be assigned to the municipalities or cities, respectively, in which the same is situated.

7.3 If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located.

7.4 Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. 212 3. Permanent Trust The court may order the establishment of a permanent trust so that only the income from the property shall be used. 213 4. Claim Within Five Years If a person entitled to the estate escheated appears and files a claim with the court within five (5) years from the date of the judgment, he shall obtain possession and title to the property. If it has already been sold, the municipality or city shall be accountable to him for the proceeds, after deducting expenses for the care of the estate, but a claim not made with said time shall be forever barred. 5. Other actions for escheat Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed also by Rule 91, except that the action shall be instituted in the province where the land lies in whole or in part.

8. CHANGE OF NAME 1. Name Defined

A name is that word or combination of words by which a person is distinguished from others and which he bears as a label or appellation for the convenience of the world at large in addressing him or in speaking 2

12

2

13

Rules of Court, Rule 91, Sec. 3. Rules of Court, Rule 91, Sec. 3, second paragraph.

of or dealing with him. 214

1. Minor

A minor may sign and verify his petition for a change of name subject to the required assistance of a guardian ad litem, although the absence of the latter does not void the proceeding because it is amendable. 215

2. Resident Aliens

Resident aliens may also petition for a change of name. A nonresident alien may not avail himself of the same right; such a proceeding would not be of much benefit to him.216 But the petition will not be entertained if petitioner’s citizenship is either controverted or doubtful. 217 2. Procedure 1. Venue

The petition shall be filed in the RTC (CFI) of the place of residence of the person desiring to change his name. 218

2. Petition

Petitioner should allege (1) that he is a bona fide resident of the region (province) for at least three (3) years, (2) the cause for the change of name, and (3) the name asked for. 219

3. Hearing

The hearing is held after notice and publication. 220 The inclusion in the title of the petition for change of name and in the published order of the name sought to be authorized, is jurisdictional. 221 3. Case Rulings 1. Joinder of causes of action

2

14

2

15

2 2 2 2 2 2

Yu v. Republic, G.R. No. 20874, May 25, 1966, 17 SCRA 253. Tse v. Republic, G.R. No. 20708, August 31, 1967, 20 SCRA 1261. 16 Ong Huan Tin v. Republic, G.R. No. 20997, April 27, 1967, 19 SCRA 966. 17 Basas v. Republic, G.R. No. 23595, February 20, 1968, 22 SCRA 652. 18 Rules of Court, Rule 103, Sec. 1. 19 Ibid, Sec. 2. 20 Ibid, Secs 3 and 4. 21 Go v. Republic, G. R. No. L-31760, May 25, 1977, 77 SCRA 65.

Petitions for adoption and change of name cannot be joined. They are not the same in nature and character nor do they present common questions of law and fact. 222

2. Resumption of use of maiden name after divorce

The resumption by the wife of her maiden name after a Muslim divorce, is not change of name under Rule 103. The proceeding filed to resume the use of the maiden name is a superfluity but it is directory. 223

3. Absence of cause

No proper and reasonable cause has been shown in the petition for a change of name from Vicencio to Yu. In fact, confusion is likely. Adoption is required. 224

4. Causes for change of name

A 47-year old resident of Tacloban City, named Haw Liong, wanted to change his name to Alfonso Lantin, as he would soon be a Filipino. The Supreme Court, however, held that there was no compelling reason for the change of name. According to the Court, what may be considered, among others, as proper and reasonable causes that may warrant the change are: (1) when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a change of status, such as when a natural child is acknowledged or legitimated; and (3) when the change is necessary to avoid confusion. 225

5. Erasing signs of former nationality

Petitioner was born in Hong Kong and came to the Philippines as a British subject. He became a naturalized Filipino. The Court of Appeals found that the evidence established sufficient justification for petition for change of name, i.e., a sincere desire to adopt a Filipino name Kenneth Kiana So, to erase signs of his former nationality which will unduly hamper his social and business life; his change of name will do away with his many aliases which should be discouraged, apart from the fact that it will avoid confusion and will be for the convenience of the world at large in addressing him or in speaking of or dealing with him. 226

2

222

Republic v. Hernandez, G. R. No. 117209, February 9, 1996, 253 SCRA 509.

223

Yasin v. Judge, Shari’a District Court, G.R. No. 94986, February 23, 1995, 241 SCRA 606.

224

Republic v. Court of Appeals, G.R. No. 88202, December 14, 1998, 300 SCRA 138.

25

226

Haw Liong v. Republic, G.R. No. 21194, April 24, 1966, 16 SCRA 677. Republic v. Intermediate Appellate Court, G. R. No. L-70513, October 13, 1986, 145 SCRA 25.

6. Resulting confusion

Legitimate minor children were not allowed to adopt the surname of the mother’s second husband, because there would be a false impression of their family relations, as it could result in confusion in their paternity. 227

7. Improving personality or social standing

On the other hand, a natural child through her mother petitioned for a change of name to adopt the surname of her stepfather. The Solicitor General argued that this would hide the child’s illegitimacy. The Supreme Court held that there was nothing wrong with it, and that a change of name may be asked to improve one’s personality or social standing and to promote his best interests as long as injury or prejudice is not caused to anyone. 228

8. Legitimate minor child

A legitimate minor child may not also be allowed to change his surname from that of a father who was a fugitive from justice to that of his mother. There will be confusion as to parentage as it might create the impression that the minors were illegitimate since they would carry the maternal surname only, which is inconsistent with their legitimate status in their birth records. 229

9. ABSENTEES 1. Basic Concepts

2

27

2

28

2

Padilla vs. Republic, No. L-28274, April 30, 1982, 113 SCRA 789. Calderon v. Republic, G.R. No. 18127, April 5, 1967, 19 SCRA 721. 29 Naldoza v. Republic, G.R. No. L-55538, March 15, 1982, 112 SCRA 568.

1. Provisional representative

When a person disappears without leaving an agent behind, an interested party, relative or friend, may file a petition before the RTC (CFI) of the last place of residence of the person who disappeared to appoint provisionally a representative for him. 230

2. Trustee or Administrator

After two (2) years without any news or after five (5) years if an agent was left to administer his property, a petition for declaration of absence and appointment of a trustee or administrator may be filed. 231

3. Notice and publication is required. 232

4. Preferences

The court may appoint as trustee or administrator or provisional representative (1) the spouse of the missing person if they are not legally separated or if the spouse is not a minor or otherwise incompetent; or, in default of the spouse, (2) any competent person. 233

5. Termination

The appointment shall be terminated (1) if the absentee appears personally or by agent; (2) when death is proved and the heirs appear; or (3) when a third person acquires the property of the absentee.

6. A wife filed a petition to declare her missing husband absent and presumed dead. But he left no property. HELD: There is no need for the petition. 234A declaration of presumption of death can never be final. 235

2

30

2

31

2 2 2 2

Rules of Court, Rule 107, Sec. 1. Ibid, Sec. 2. 32 Ibid, Sec. 4. 33 Rules of Court, Rule 106, Sec. 7. 34 Reyes v. Alejandro, No. L-32026, January 16, 1986, 141 SCRA 65. 35 Jones v. Hortiguela, 64 Phil. 179 [1937].

10. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY 1. Petitioner

The petitioner may be any interested person concerning the civil status of persons. 236

2. Venue

The petition may be filed with the RTC (CFI) where the corresponding civil registry is located. 237

3. Parties

The civil registrar and all persons affected shall be made parties to the proceeding. 238

4. Notice and publication are required before the hearing. 239

5. The remedy for the correction of the civil status of a person is in Rule 108 which is not a summary but an adversary proceeding. 240

Note: Sec. 3, Rule 108, requires all interested persons who may be affected by the petition to be made parties.

2

36

2

37

2 2 2

Rules of Court, Rule 108, Sec. 1. Ibid. 38 Rules of Court, Rule 108, Sec. 3. 39 Ibid, Sec. 4. 40 Republic v. Valencia, No. L-32181, March 5, 1986, 141 SCRA 462.

11. SUMMARY PROCEEDINGS UNDER THE FAMILY CODE

1. Summary Proceedings under the Family Code

The cases shall be heard by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent, sitting in the place where either of the parties or spouses resides. 241

1. Rationale

The summary remedy was thought of mainly because of separated spouses. One of them usually has difficulty obtaining the consent of the other spouse for a transaction where such consent is required. Thereafter, it was felt that this summary remedy may as well apply to other cases provided in the Family Code where court approval is needed.

2. Procedural rules

At the same time, however, there was the apprehension that some people may not accept the fact that a piece of legislation is providing for procedural rules which, according to them, is within the exclusive authority of the Supreme Court. Hence, it was provided in the Family Code that: Until modified by the Supreme Court, the procedural rules in the Family Code govern all cases provided in the Code requiring court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. 242

3. Coverage

Summary procedure may be used in cases provided in Articles 239, 248, 223, 225, 235, 41, 51, 69, 73, 96, 124, 217, Family Code, viz:

3.1 A verified petition may be filed to seek judicial authorization for a transaction where the consent of an estranged spouse is needed. 243 Claims for damages by either spouse, except costs, may be litigated only in a separate action. 244

2 2 2

Family Code, Art. 241. Ibid, Art. 238. 43 Family Code, Article 239. 244 Ibid. 41 42

3.2 The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for support of the family. 245

3.3 Petitions filed under Articles 223, 225 and 236 of the Family Code involving parental authority which shall be verified, to be filed in the proper court of the place where the child resides. The court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child.

3.4 Summary proceedings filed under Articles 41, 51, 69, 96, 124 and 217, insofar as they are applicable.

4. Procedure

The summary procedure is set forth in certain provisions of the Family Code (Arts. 239-247, 250252, FC) as follows:

4.1 A verified petition

A verified petition setting forth the alleged facts and attaching the proposed deed of the transaction involved. 246

4.2 Notice to interested persons

Notice shall be given to all interested persons upon the filing of the petition.

4.3 Preliminary conference

The preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. 247

4.4 Requiring appearance

In case of non-appearance of the other party, the court shall inquire into the reasons why and shall require such appearance, if possible. 248 2

45

2

46

2 2

Family Code, Article 248. Family Code, Article 239. 47 Ibid, Art. 243. 48 Ibid, Art. 244.

4.5 Ex-parte proceeding

If attendance is not secured, then the court may proceed ex parte and render judgment as the facts and circumstances warrant, but the court shall endeavor to protect the interests of the non-appearing party.

4.6 Summary hearing

The case shall be heard on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. 249

4.7 Testimony

If testimony is needed, the court shall specify the witnesses to be heard and the subject matter of their testimonies, directing the parties to present said witnesses. 250

4.8 Judgment

The judgment of the court shall be immediately executory. 251

2

49

2

50

2

Family Code, Art. 246. Ibid. 51 Family Code, Art. 24.

12. TRUSTEES 1. Basic Concepts

1. Appointment

Upon a proper petition, a trustee may be appointed to carry into effect the provisions of a will or written instrument. 252 The appointment will be made if the testator omitted in his will A nonresident alien may not avail himself of the same right; such as to appoint a trustee in the Philippines, and if the appointment is necessary to proceeding would not be of much benefit to him. 253

2. Venue

The petition may be filed in the RTC (CFI) in which the will is allowed if allowed here; 254 if not, by the RTC (CFI) in the region in which the property or part thereof affected by the trust is situated. 255

3. Notice

No publication is required but the appointment is after notice to all persons interested. 256

252

Rules of Court, Rule 98, Sec. 1.253. Ibid, Sec. 2.254. Basas v. Republic, No. L-23595, February 20, 1968, 22

SCRA 652.

2

53

2

54

2

Ibid., Sec. 2 Basas V. Republic, No. L-23595, February 20, 1968, 22 SCRA 652 56 Ibid, Sec. 2.

4. Bond, inventory and sale of trust estate

Similar to executors and administrators, the trustee also files a bond except when the court exempts him. 257 He also files an inventory. He may sell or encumber trust property with court approval. 258

13. PROCEEDINGS FOR THE HOSPITALIZATION OF INSANE PERSONS 1. Venue

The petition should be filed in the RTC (CFI) of the place where the person alleged to be insane is found. 259

2. Petitioner

The petition is to be filed by the Director of Health when, in his opinion, the commitment to a hospital or other place for the insane is for the public welfare, or the welfare of the alleged insane who in his judgment is truly insane and such person or the one in charge of him is opposed to the commitment.260

3. The court shall provide for the custody of the property or money of the insane until a guardian is appointed.261

4. The Director of Health shall file a petition for discharge if the person committed is temporarily or permanently cured, or may be released without danger.262

5. The Provincial or City Fiscal (Prosecutor) represents the Director of Health in court.263 2

57

2

58

2 2 2 2 2

Ibid, Secs. 5 and 6. Ibid, Sec. 9. 59 Rules of Court, Rule 101, Sec. 1. 60 Ibid, Secs. 1 and 3. 61 Ibid, Sec. 3. 62 Ibid, Sec. 4. 63 Ibid, Sec. 5.

14. OTHER SPECIAL PROCEEDINGS 1. Voluntary Dissolution of Corporations

1. This Rule is no longer relevant. The voluntary dissolution of corporations has been governed by Presidential Decree No. 902-A and the provisions of the Corporation Code, particularly Secs. 117 to 122 thereof.

2. Proceedings have been before the Securities and Exchange Commission, but under Rep. Act No. 8799, which is the new Securities Regulation Code, approved July 19, 2000, its quasi-judicial cases have been transferred back to the regular courts. Sec. 5.2 of Rep. Act No. 8799 provides:

The Commission's jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court: Provided, That the Supreme Court in the exercise of its authority may designate the Regional Trial Court branches that shall exercise jurisdiction over these cases. The Commission shall retain jurisdiction over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved within one (1) year from the enactment of this Code. The Commission shall retain jurisdiction over pending suspension of payments/ rehabilitation cases filed as of 30 June 2000 until finally disposed.

3. Section 5 of Presidential Decree No. 902-A, mentioned in Sec. 5.2 of Rep. Act No. 8799 above-quoted, enumerates the following cases:

(a) Devices or schemes employed by or any acts, of the board of directors, business

associates, its officers or partners, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholder, partners, members of associations or organizations registered with the Commission.

(b) Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members, or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity;

(c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations; and

(d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership, or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under management of a Rehabilitation Receiver or Management Committee created pursuant to this Decree. (as added by P.D. No. 1758.)

4. Decisions of the courts in the foregoing cases are appealable to the Court of Appeals, as provided by Section 70 of Rep. Act No. 8799, which is an affirmation of Rule 43, 1997 Rules of Civil Procedure.

5. Effective December 15, 2000, the Interim Rules of Procedure on Corporate Rehabilitation took effect on December 15, 2000. (A.M. No. 008-10-SC, promulgated on November 21, 2000) 2. Judicial Approval of Voluntary Recognition of Minor Natural Children 1. There is no longer any provision in the Family Code for acknowledged natural children. Children are either legitimate or illegitimate.

2. What is to be proved is filiation, and voluntary recognition could be the means of proving filiation if the putative father or mother would later refuse to continue the child.

3. Relevant provisions of law are in Articles 172, 173 and 175 of the Family Code.

4. In the case of illegitimate children, the action also survives the death of either or both of the parties except when the action is based on the second paragraph of Article 172, referring to an action based on the open and continuous possession of the status of a legitimate child and any other means allowed by the Rules of Court, in which case the action may be brought only during the lifetime of the alleged parent.

5. The action under Rule 105 may be converted to an action for paternity and filiation.

5.1 Venue

The petition should be filed in the RTC (CFI) where the child resides. 264

5.2 Contents of petition

Aside from the jurisdictional facts, the petition shall contain:

5.2.1 the names and residences of the parents or one of them who acknowledged, their compulsory heirs and the person or persons with whom the child lives; and

5.2.2 the document containing the recognition, a copy of which should be attached to the petition, which document is either a statement before a court of record or an authentic writing. 265

5.3 A hearing is held after notice and publication. 266The court grants the petition when it is satisfied that the recognition was willingly and voluntarily made and is for the best interest of the child. 267 3. Constitution of the Family Home 1. Rule 106 on the Constitution of the Family Home is already irrelevant in view of the Family Code.

2. Under the Family Code, the family home is automatically constituted. Article 153 of the Family Code provides: 'The family home is deemed constituted on a house and lot from the time it is occupied as a family residence.'

3. The constitution of the family home, however, is not retroactive. 268

4. The family home must be deemed constituted on both the house and lot such that if the occupants of the family residence do not own the lot on which it stands, there is no family home exempt from execution. 269

2

64

2

65

2 2 2

2

Rules of Court, Rule 105, Sec. 5. Ibid, Sec. 2. 66 Ibid, Sec. 3. 67 Ibid, Sec. 5. 68 Modequilla v. Breva, G.R. No. 86355, May 31, 1990, 185 SCRA 766; Manacop v. Court of Appeals, G.R. No. 104875, November 13, 1992, 215 SCRA 773; Taneo, Jr. v. Court of Appeals, G.R. No. 108532, March 9, 1999, 304 SCRA 308, 319-320 [1999]. 69 Taneo, Jr. v. Court of Appeals, supra, note 268.

15. APPEALS IN SPECIAL PROCEEDINGS 1. Appealability

An order or judgment which is appealable in special proceedings is an order or judgment which

1. Allows or disallows a will;

2. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled;

3. Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it;

4. Settles the account of an executor, administrator, trustee, or guardian;

5. Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and

6. Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for new trial or for reconsideration. 270 2. Who May Appeal Any interested person may appeal. A stranger having neither material nor direct interest in a testate or intestate estate has no right to appeal from any order issued therein. 271 Those who have been allowed to appeal are:

1. A surety of an executor or administrator, made a party to an accounting made by such executor or administrator, from an order approving or disapproving such accounting.

2. An heir, legatee or devisee who has been served with notice as to a money claim against the estate admitted by the executor or administrator, from an order of the court approving such claim;

3. A creditor who is allowed by the court to bring an action for recovery of property;

2

70

2

71

Rules of Court, Rule 109, Sec. 1. Espinosa v. Barrios, 70 Phil. 311 [1940].

4. A special administrator, from an order disallowing a will. 272 3. Perfection of Appeal 1. Rules 41 (Appeal from the Regional Trial Courts), 42 (Petition for Review from the Regional Trial Courts to the Court of Appeals) and Rule 45 (Appeal by Certiorari to the Supreme Court), all of the 1997 Rules of Civil Procedure) apply in conformity with Rule 72, section 2, which refers to the applicability of the rules of civil actions to special proceedings and which provides that in the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

2. Appeals in special proceedings are termed "multiple appeals" under the Interim Rules of Court and under the 1997 Rules of Civil Procedure. For multiple appeals, a record on appeal is required, while the period of appeal is thirty (30) days, instead of fifteen (15) days.

4. Advance Distribution

1. A part of the estate as may not be affected by the controversy or appeal, may be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90. 273

2. A partial distribution should as much as possible be discouraged by the courts, and unless in extreme cases, such form of advances should not be countenanced. 274

3.

The reason for this strict rule is obvious -- courts should guard with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately

protected and all the rightful heirs assured of their shares in the inheritance. 275

272

2

Fluemer v. Hix, 54 Phil. 610 [1930].

Rules of Court, Rule 109, Sec. 2. Gatmaitan v. Medina, 109 Phil. 109 [1960]; reiterated in Dael v. Intermediate Appellate Court, G.R. No. 68873, March 31, 1989, 171 SCRA 524. 73

274

2

75

Ibid.

Criminal Procedure Part 1 Procedure in Trial Courts 1. JURISDICTION IN CRIMINAL CASES

A. Introduction

1. Criminal Jurisdiction defined

Criminal jurisdiction is the authority to hear and try a particular offense and impose the punishment for it.1

2. Elements

2.1 The nature of the offense and/or penalty attached thereto; and

2.2 Commission of the offense within the territorial jurisdiction of the court.

The non-concurrence of either of these two (2) elements may be challenged by an accused at any stage of the proceedings in the court below or on appeal. Failing in one of them, a judgment of conviction is null and void.2

B. Requisites for its valid exercise:

1. Jurisdiction over the subject matter;3

Philippine courts have no common law jurisdiction or power, but only those expressly conferred by the Constitution and statutes and those necessarily implied to make the express effective.4

The question of jurisdiction of the court over the case filed before it is to be resolved on the basis of the law or statute providing for or defining its jurisdiction.5 1

People v. Mariano, No. L-40527, June 30, 1976, 71 SCRA 600.

2

Manila Railroad Co. v. Attorney General, 20 Phil. 523 [1911]; U. S. v. Jayme, 24 Phil. 90 [1913].

3

Reyes v. Diaz, 73 Phil. 484 [1941].

4

Velunta v. Chief, Philippine Constabulary, No. L-71855, January 20, 1988, 157 SCRA 147.

5

People v. Mariano, supra, note 1.

The jurisdiction of a court to try a criminal action is determined not by the law in force at the time of the commission of offense but by the law in force at the time of the institution of the action.6

Once vested, jurisdiction cannot be withdrawn or defeated by a subsequent valid amendment of the information.7

2. Jurisdiction over the territory where the offense was committed; and

3. Jurisdiction over the person of the accused.

C. Jurisdiction Determined by Allegations of Complaint or Information

The averments in the complaint or information identify the crime charged and determine the court before which it must be tried.8

To determine the jurisdiction of the court in a criminal case, the complaint or information must be examined to ascertain if the facts set out therein and the penalty prescribed by law fall within the jurisdiction of the court regardless of the court’s findings after the trial.9

D. Jurisdiction Over Complex Crimes

Jurisdiction over the whole complex crime is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime.10

Where the imposable penalty for the physical injuries charged would come within the jurisdiction of the municipal trial court, while the fine for the damage to the property, would fall on the Court of First Instance (now the Regional Trial Court), the jurisdiction of the court to take cognizance of the case must be determined not by the corresponding penalty for the physical injuries charged but by the fine imposable for the damage to property resulting from the reckless imprudence.11

E. Crimes Punishable by Destierro

Where the imposable penalty is destierro such as that imposed in the case of concubinage in the crime of concubinage as defined in Article 334 of the Revised Penal Code, the case falls within the exclusive jurisdiction of the Municipal Trial Court, considering that in the hierarchy of penalties under Article 71 of the

6

De La Cruz v. Moya, No. L-65192, April 27, 1988, 160 SCRA 838.

7

People v. Chupeco, G. R. L-19568, March 31, 1964, 10 SCRA 640.

8

People v. Magallanes, G. R. No. 118013-4, October 11, 1995, 249 SCRA 212.

9

Buaya v. Polo, G. R. No. 75079, January 26, 1989, 169 SCRA 471.

1

0

Cuyos v. Garcia, G. R. No. 46934, April 15, 1988, 160 SCRA 302.

1

1

People v. Malabanan, No. L-16478, August 31, 1961, 2 SCRA 1185.

Revised Penal Code, destierro follows arresto mayor which involves imprisonment.12

2. TERRITORIAL JURISDICTION 1. General Rule

A criminal case should be instituted and tried in the place where the offense was committed or any of its essential ingredients took place.13

Exceptions:

1. Under the 1987 Constitution, the Supreme Court may order a change of venue or place of trial to avoid a miscarriage of justice.14

2. When the law provides otherwise – e.g., Presidential Decree No. 1606, Revising Presidential Decree No. 1486 Creating a Special Court to be known as 'Sandiganbayan' and for other purposes, as amended by Presidential Decree No. 1861.

3. Case under the Revised Rules of Criminal Procedure, Rule 110, Section 15 (b), (c) and (d).

2. Jurisdiction Over the Person of Accused

Jurisdiction over the person of the accused is acquired either by his/her arrest or voluntary appearance in court.15 1

2

1

3

People v. Mercado, 65 Phil. 665 [1938]; Manila Railroad Co. v. Attorney General, supra, note 2.

1

4

Art. VIII, Sec. 5 (4).

1

5

Republic v. Sunga, No. L-38634, June 20, 1988, 162 SCRA 191 citing Crespo v. Mogul, No. L-53373, June 30, 1987, 151 SCRA 462.

People v. Eduarte, G. R. No. 88232, February 26, 1990, 182 SCRA 750.

3. Criminal Jurisdiction Of Municipal Trial Courts (Republic Act 7691 Section 2 Amending Section 32 of Batas Blg. 129)

1. Violations of city or municipal ordinances committed within their respective territorial jurisdictions

2. All offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of the 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

3. Offenses involving damage to property through criminal negligence regardless of the value of the property

Exceptions:

1. Cases falling within the exclusive original jurisdiction of the (a) Regional Trial Court, and (b) the Sandiganbayan

Examples:

(i) Libel is punishable by prision corrreccional in its minimum and maximum period or fine or bail (Revised Penal Code, Article 354). Article 360, however, of the same code as amended, provides that the criminal and civil action for damages in cases of written defamation shall be filed in the court of first instance, etc.16

(ii) Jurisdiction over Election Offenses

SEC. 268. Jurisdiction of courts. — The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases.17

(iii) Article X Jurisdiction Over Dangerous Drugs Cases

SEC. 39. Jurisdiction. — The Court of First Instance, Circuit Criminal Court, and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, That in cities or provinces where there are Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under sixteen years of age.18

Thus, the aforementioned exception refers not only to Section 20 of Batas Blg. 129 providing for the jurisdiction of Regional Trial Courts in criminal cases, but also to other laws which specifically lodge in Regional Trial Courts exclusive jurisdiction over specific 1

6

People v. Metropolitan Trial Court of Quezon City, Br. 32, G.R. No. 12326, December 16, 1996, 265 SCRA 645.

1

7

Omnibus Election Code, Sec. 184.

1

8

Morales v. Court of Appeals, G. R. No. 126623, December 12, 1997, 283 SCRA 211.

criminal cases, e.g., (a) Article 360 of the Revised Penal Code, as amended by Republic Act 1289 and 4363 on written defamation or libel; (b) Intellectual Property Code (Repubic Act No. 8293), which vests upon Regional Trial Court exclusive jurisdiction over the cases therein mentioned regardless of the imposable penalty; and (c) more appropriately for the case at bar, Section 39 of Republic Act. No. 6425, as amended by Presidential Decree No. 44, which vests on Courts of First Instance, Circuit Criminal Courts, and the Juvenile and Domestic Relations Courts concurrent exclusive original jurisdiction over all cases involving violations of said Act.19

2. Cases which fall under the original and exclusive jurisdiction of the Family Courts (Rep. Act No. 8369)

3. Cases which fall under the original and exclusive jurisdiction of the Sandiganbayan under Republic Act 8249

The Sandiganbayan has exclusive and original jurisdiction cases where the accused are those enumerated in subsection a, Section 4 and, generally, national and local officials classified as Grade '27' and higher under the Compensation and Position Classification Act of 1989 (Rep. Act No. 6758). Its jurisdiction over other offenses or felonies committed by public officials and employees in relation to their office is no longer determined by the prescribed penalty, viz., that which is higher than prision correccional or imprisonment for six (6) years or a fine of Php 6,000; it is enough that they are committed by those public officials and employees enumerated in subsection a, Section 4 above. However, it retains its exclusive original jurisdiction over civil and criminal cases filed pursuant to or in connection with Executive Order Nos. 1, (Creating the Presidential Commission on Good Government); 2 (Regarding the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, Their Close Relatives, Subordinates, Business Associates, Dummies, Agents, or Nominees); 14 (Defining the jurisdiction Over Cases Involving the Ill-gotten Wealth of Former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, Members of Their Immediate Family, Close Relatives, Subordinates, Close and/or Business Associates, Dummies, Agents, and Nominees; and 14-A (Amending E.O. No. 14)20

Under Republic Act No. 8249, the Sandiganbayan partly lost its exclusive original jurisdiction in cases involving:

1. Violations of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act as amended);

2. Republic Act No. 1379 (An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully Acquired by any Public Officer or Employee and Providing for the Proceeding Therefor); and

3. Chapter II, Section 2, Title VII of the Revised Penal Code. (Article 210, Direct Bribery; Article 211, Indirect Bribery; and Article 212, Corruption of Public Officials).

Administrative Circular No. 09-94 1

9

Morales v. Court of Appeals, supra, note 18.

2

0

People v. Magallanes, supra, note 8.

Subject: Guidelines in the implementation of Republic Act No. 7691, Entitled 'An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, Amending For the Purpose Batas Pambansa Blg. 129, Otherwise Known as the Judiciary Reorganization Act of 1980.'

For the guidance of the Bench and the Bar, the following guidelines are to be followed in the implementation of Republic Act No. 7691, entitled 'An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as the ‘Judiciary Reorganization Act of 1980q

xxx

3. The criminal jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts under Section 32 (2) of B.P. Blg. 129, as amended by R.A. 7691, has been increased to cover offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of the fine. As a consequence, the Regional Trial Courts have no more original jurisdiction over offenses committed by public officers and employees in relation to their office, where the offense is punishable by more than four (4) years and two (2) months up to six (6) years.

4. The provisions of Section 32 (2) of B.P. Blg. 129, as amended by R.A. No. 7691, apply only to offenses punishable by imprisonment or fine, or both, in which case the amount of the fine is disregarded in determining the jurisdiction of the court. However, in cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court in accordance with the original provisions of Section 32 (2) of B.P. 129 which fixed the original exclusive jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts over offenses punishable with a fine of not more than Php 4,000. If the amount of the fine exceeds Php 4,000, the Regional Trial Courts shall have jurisdiction, including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed Php 6,000.

However, this rule does not apply to offenses involving damage to property through criminal negligence which are under the exclusive original jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, irrespective of the amount of the imposable fine.

4. Cases Governed by the Summary Rules (Revised Rules on Summary Procedure)

1. Violations of traffic laws, rules and regulations;

2. Violations of the Rental Law;

3. Violations of the municipal or city ordinances;

4. Offenses committed by the public officers and employees in relation to their office, including those employed in government-owned-or-controlled corporations, where the penalty prescribed by law is imprisonment of not exceeding six (6) months, or a fine of not exceeding Php 1,000 or both;

5. All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six (6) months imprisonment, or a fine of not exceeding Php 1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom.

6. Offenses involving damage to property through criminal negligence where the imposable fine

does not exceed Php 10,000.

5. Cases Governed by the Regular Rules

1. The regular rules are as follows:

1.1 Offenses committed by public officers and employees in relation to their office, including those employed in government-owned-or-controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law imprisonment exceeding six (6) years or a fine exceeding Php 4,000 when the offender’s position is below those enumerated above.

1.2 All other offenses where the imposable penalty prescribed by law is imprisonment exceeding six (6) years or a fine exceeding Php 1,000 but no more than Php 4,000 or both, regardless of other imposable accessory, or other penalties, including the civil liabilty arising from such offense or predicated thereon, irrespective of kind, nature, value or amount thereof.21

1.3 Offenses involving damage to property through criminal negligence only, where the imposable fine exceeds Php 10,000.22

2. Notes

2.1 'Imposable Penalties' refers to the penalty prescribed by law for the offenses charged and not the penalty actually imposed on the accused after the plea of guilty on trial.

2.2 Any circumstances which may affect criminal liability must not be considered. The jurisdiction in court in a criminal case is determined by the penalty imposable, not the penalty ultimately imposed.23

Examples:

(i) Juan is charged with serious physical injuries resulting in deformity under Article 263, paragraph 3 of the Revised Penal Code which prescribed a penalty of prision correccional in its medium and maximum periods ranging from six (6) months and one (1) day to four (4) years and two (2) months. The fact that the Municipal Court is of the opinion that the penalty to be imposed should only be arresto mayor would not place the case under the Summary Rules.

(ii) If Juan is charged under Article 263 paragraph 2 of the Revised Penal Code with the person injured having lost the use of an arm, the penalty prescribed for such offense is 2

1

BP Blg. 129, Sec. 32.

2

2

Summary Rules, Sec. 1.B, in relation to BP Blg. 129, Sec. 32.

2

3

Guevarra v. Almodovar, G. R. No. 75256, January 26, 1989, 169 SCRA 476.

prision correccional in its medium and maximum periods ranging from two (2) years, four (4) months and one (1) day to six (6) years. The case falls under the jurisdiction of the Regional Trial Court. The fact that the Regional Trial Court Judge is of the opinion that the penalty to be actually imposed should only be two (2) years and four (4) months would not divest the Regional Trial Court of its jurisdiction since it is the penalty prescribed by law that determines jurisdiction.

2.3 'Imposable accessory penalties' refers to the accessory penalties accompanying (1) prision correccional prescribed in Article 41, Revised Penal Code (RPC); (2) arresto mayor prescribed in Article 42 and (3) confiscation and forfeiture of the proceeds and instruments of the crime prescribed in Article 45, RPC.

2.4 Other imposable penalties

The additional penalty for habitual delinquency is not considered in determining which court shall have jurisdiction over a criminal case because such delinquency is not a crime.24

2.5 Civil liability irrespective of value or amount

Where the offense charged is within the exclusive competence of the municipal trial court by reason of the penalty (imprisonment, etc.), it shall have jurisdiction to try and decide the case even if the civil liability (such as actual, compensatory, etc.) claimed exceeds Php 20,000.25

2.6 Civil liability irrespective of kind of nature

Where the offense charged is within its exclusive competence by reason of the penalty prescribed therefor, a municipal trial court shall have jurisdiction to try and decide the cases irrespective of the kind or nature of the civil liability arising from the said offense.

Example:

A municipal trial court has jurisdiction over a case of simple seduction defined and penalized under Article 338 of the Revised Penal Code, as amended, with arresto mayor, regardless of the civil liability, such as support and acknowledgment of the offspring, that may be imposed under Article 345 of the same code.

6. Damage to Property Through Criminal Negligence

Article 365 of the Revised Penal Code, as amended, provides that when criminal negligence shall have resulted only in damage to property of another, the offender shall be punished by a fine ranging from an 2

4

B. P. Blg. 129; El Pueblo de Filipinas v. San Juan, 69 Phil. 347 [1940].

2

5

B. P. Blg. 129, Sec. 32; United States v. Bernardo, 19 Phil. 265 [1911]; Legados v. De Guzman, G. R. No. 35825, February 20, 1989, 170 SCRA 357.

amount equal to the value of the said damages to three (3) times such value, which shall in no case be less than Php 25.

Accordingly:

1. Where the amount or value of the damage to property alleged in the complaint or information does not exceed Php 3,333.33, the municipal trial court shall try and decide the case observing the Summary Rules.

Note: Three (3) times the said value does not exceed Php 10,000.

2. Where the amount or value of the damage to property alleged in the complaint or information is one ranging from Php 3,334 to Php 6,666.66, a municipal trial court shall try and decide the case observing Regular Rules.

Note: Three (3) times the said value exceeds Php 10,000.

The Summary Rules are not applicable to Batas Blg. 22 where the penalty of imprisonment prescribed exceeds the procedural limit of six (6) months provided in the Summary Rules. 7. Special Jurisdiction in Certain Cases In the absence of all Regional Trial Judge 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.26

3. Prosecution of Offenses 2

6

BP Blg. 129, Sec. 35.

1. Institution Of Criminal Action

1. Prosecution of offenses is instituted either by complaint or information.

The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved.27 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.28An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.29

2. Criminal actions shall be instituted as follows:

2.1 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.30 Except as provided in section 7 of Rule 110, 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.31

2.2 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.32

The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws.33

3. 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 shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.34

4. Intervention of Offended Party 2

7

2

8

2 3 3 3 3 3

Rules of Court, Rule 110, Sec. 2. Ibid, Sec. 3. 9 Ibid, Sec. 4. 0 Ibid, Sec. 1. 1 Ibid, Rule 112, Sec. 1. 2 Rules of Court, Rule 110, Sec. 1. 3 Ibid. 4 Rules of Court, Rule 110, Sec. 5.

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.35

5. Prosecution of Private Crimes

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 are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.

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, 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 any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party.

The prosecution for violation of special laws shall be governed by the provisions thereof.36

2. Distinction between control of prosecution and control of court

1. Control by Prosecution

1.1 What case to file37

1.2 Whom to prosecute38

3

5

3

6

3 3

Ibid, Sec. 16. Rules of Court, Rule 110, Sec. 5. 7 People v. Pineda, No. L-26222, July 21, 1967, 20 SCRA 748. 8 People v. Devaras, G. R. Nos. 100938-9, December 15, 1993, 228 SCRA 482.

1.3 Manner of prosecution39

1.4 Right of Prosecution to withdraw Information before arraignment even without notice and hearing40

2. Control by Court Once Case is Filed

2.1 Suspension of Arraignment41

2.2 Reinvestigation42

2.3 Prosecution by Fiscal43

2.4 Dismissal44

3. Limitations on Control by Court

3.1 Prosecution entitled to notice of hearing.45

3.2 Court must await result of petition for review.46

3.3 Prosecution’s stand to maintain prosecution should be respected by court47

3.4 Ultimate test of court’s independence is where the fiscal files a motion to dismiss or to withdraw information.48

3.5 Court has authority to review (power of judicial review) the Secretary’s recommendation and reject it if there is grave abuse of discretion.49 3

9

4

0

4 4 4 4 4 4

4 4 4

People v. Nazareno, G. R. No. 103964, August 1, 1996, 260 SCRA 256. Galvez v. Court of Appeals, G. R. No. 114046, October 24, 1994, 237 SCRA 685. 1 Crespo v. Mogul, No. L-53373, June 30, 1987, 151 SCRA 462. 2 Velasquez v. Undersecretary of Justice, G. R. No. 88442, February 1, 1990, 182 SCRA 388. 3 Sta. Rosa Mining Co. v. Zabala, No. L-44723, August 31, 1987, 153 SCRA 367. 4 Dungog v. Court of Appeals, No. L-77580-51, March 25, 1988, 159 SCRA 145. 5 Republic v. Sunga, No. L-38634, June 20, 1988, 162 SCRA 191. 6 Marcelo v. Court of Appeals, G. R. No. 106695, August 4, 1994, 235 SCRA 39; Roberts v. Court of Appeals, G. R. No. 113930, March 5, 1996, 254 SCRA 307; Dimatulac v. Villon, G. R. No. 12707, October 12, 1998, 297 SCRA 679; Solar Team Entertainment, Inc. v. How, G. R. No. 140863, August 22, 2000. 7 People v. Montesa, G. R. No. 114302, September 29, 1995, 248 SCRA 641. 8 Roberts v. Court of Appeals, supra, note 45. 9 Ledesma v. Court of Appeals, G. R. No. 113216, September 5, 1997, 278 SCRA 656; Solar Team Entertainment, Inc. v.

The Resolution of the Secretary of Justice may be appealed to the Office of the President only in offenses punishable by death or reclusion perpetua.50

3.6 To reject or grant motion to dismiss, the court must make own independent assessment of evidence.51

3.7 Judgment is void if there is no independent assessment and finding of grave abuse of discretion52

3. Testing Sufficiency Of Complaint Or Information

A complaint or information is sufficient if it states the name of the accused;53 the designation of the offense given by the statute;54 the acts or omissions complained of as constituting the offense;55 the name of the offended party;56 the approximate date of the commission of the offense;57 and the place where the offense was committed.58

When an offense is committed by more than one person, all of them shall be included in the complaint or information.59

D. Strict Scrutiny in Heinous Crimes

1. 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.60

b. Pursuant to Section 11 of the amendatory statute, the death penalty may be imposed in rape cases under the last paragraph of Article 335 of the Revised Penal Code, when the rape is committed with any of the following attendant circumstances:

5 5

5 5 5 5 5 5 5 5 6

How, supra, note 45. 0 Perez v. Hagonoy Rural Bank, G. R. No. 126210, March 9, 2000. 1 Martinez v. Court of Appeals, G. R. No. 112387, October 13, 1994, 237 SCRA 575; Roberts v. Court of Appeals, supra, note 45; Ledesma v. Court of Appeals, supra, note 48; Perez v. Hagonoy Rural Bank, supra, note 50; Jalandoni v. Secretary of Justice, G. R. Nos. 115239-40, March 2, 2000. 2 Ledesma v. Court of Appeals, supra, note 49; Solar Team Entertainment v. How, supra, note 46. 3 Rules of Court, Rule 110, Sec. 7. 4 Ibid, Sec. 8. 5 Ibid, Sec. 9. 6 Ibid, Sec. 6. 7 Ibid, Sec. 11. 8 Ibid. 9 Ibid, Sec. 6. 0 Ibid, Sec. 9.

1. When the victim is less than eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

2. When the victim is under the custody of the police or military authorities.

3. When the rape is committed in full view of the husband, parent, any of the children or other relative within the third degree of consanguinity.

4. When the victim is a religious or a child below seven (7) years old.

5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.

7. When by reason on the occasion of the rape, the victim has suffered permanent physical mutilation.61

The need to allege qualifying circumstances to justify finding of qualified rape and the imposition of death penalty was stressed in several cases. The additional attendant circumstances introduced by Rep. Act No. 7659 should be considered as special qualifying circumstances distinctly applicable to the crime of rape, and if not pleaded as such, could only be appreciated as generic aggravating circumstances.62

Without allegation of relationship in cases of statutory rape, proof alone of relationship unless specifically alleged in the information would not warrant imposition of the death penalty.63

Thus, the concurrence of the minority of the victim and her relationship of the offender is a special qualifying circumstance which should both be alleged 64 and proved65 with certainty in order to warrant the imposition of the death penalty. In these cases complainant never said she was below eighteen (18) years of age when she was allegedly raped by her father on any of the dates stated in the complaint.66

Where the information alleged the accused, who is the stepfather of complainant, succeeded in having carnal knowledge of the latter who was then below eighteen (18) years of age, the evidence shows that the accused is not the complainant’s stepfather because he and complainant’s mother were not really married but only lived in common law relationship. Thus, although a husband is subject to punishment by death in case he commits rape against his wife’ s daughter, the death penalty cannot be imposed because the relationship alleged in the information is different from that actually proven.67 6

1

6

2

6

6 6 6 6

As amended by Rep. Act No. 7659, Sec. 11. People v. Garcia, G. R. No. 120093, November 6, 1997, 281 SCRA 463. 3 People v. Perez, G. R. No. 122764, September 24, 1998, 296 SCRA 17; People v. Bolatete, G. R. No. 127570, February 13, 1999, 303 SCRA 709; People v. de la Cuesta, G. R. No. 126134, March 2, 1999, 304 SCRA 83; People v. Ambray, G. R. No. 127177, February 25, 1999, 303 SCRA 697. 4 People v. Cantos, G. R. No. 129298, April 14, 1999, 305 SCRA 876. 5 People v. Manggasin, G. R. No. 130599-60, April 21, 1999, 306 SCRA 228. 6 People v. Maglente, G. R. Nos. 1124559-66, April 30, 1999, 306 SCRA 546. 7 People v. Manggasin, supra, note 65.

5. Duplicity of the Offense and Continuing Crimes 1. Duplicity of the offense

A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.68

2. Continuing Crimes: The Principle of Delito Continuado

Santiago v. Garchitorena

G. R. No. 109266, December 2, 1993, 228 SCRA 214

The original Information charged petitioner with performing a single criminal act – that of her approving the application for legalization of aliens not qualified under the law to enjoy such privilege. The 32 Amended Informations reproduced verbatim the allegation of the original Information, except that instead of the word 'aliens' in the original Information, each amended Information states the name of the individual whose stay was legalized.

The 32 Amended Informations charge what is known as delito continuado or 'continued crime' and sometimes referred to as 'continuous crime'.

For Cuello Calon, the delito continuado to exist there should be a plurality of acts performed during a period of time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations of the same penal provisions are united in one and the same intent or resolution leading to the perpetration of the same criminal purpose or aim.

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is only one crime in the mind of the perpetrator.

2.1 Examples of Delito Continuado

2.1.1 The single larceny rule

a. The theft of 13 cows belonging to two different owners committed by the accused at the same place and at the same period of time;69

b. The theft of six roosters belonging to two different owners from the same coop and at the same period of time;70

6

8

6

9

7

Rules of Court, Rule 110, Section 13 People v. Tumlos, 67 Phil. 320 [1939]. 0 People v. Jaranilla, No. L-28547, February 22, 1974, 55 SCRA 563.

c. The theft of two roosters in the same place and on the same occasion;71

d. The illegal charging of fees for services rendered by a lawyer every time he collects veterans’ benefits on behalf of a client, who agreed that the attorney’s fees shall be paid out of said benefits;72

e. Illegal approval of the application for the legalization of stay of 32 aliens, constitutes only one crime.73

2.1.2 The concept of delito continuado was not applied in the following cases:

a. Two estafa cases, one of which was committed during the period from January 19 to December 1995 and the other from January 1956 to July 1956. The said acts were committed on two different occasions.74

b. Several malversations committed in May, June and July, 1936, and falsifications to conceal the same offenses committed in August and October 1936. The malversations and falsifications 'were not the result of only one purpose or of only one resolution to embezzle and falsify xxx.'75

c. Two estafa cases, one committed in December 1963 involving the failure of the collector to turn over the installments for a radio and the other in June 1964 involving the pocketing of the installments for a sewing machine.76

d. 75 estafa cases committed by the conversion by the agent of collections from customers of the employer made on different dates.77

e. Robbery and fencing are two separate crimes. Principle of Delito Continuado is not applicable.78

f. In a single Information for murder for shooting three persons where evidence did not show that a single shot had slain three different persons, the appellant was properly held liable for three separate murders and sentenced to three separate penalties of reclusion perpetua.79 7

1

7

2

7 7 7 7 7 7 7

People v. De Leon, 49 Phil. 437 [1926]. People v. Sabbun, No. L-18510, January 31, 1964, 10 SCRA 156. 3 Santiago v. Garchitorena, G. R. No. 109266, December 2, 1993, 228 SCRA 214 4 People v. Dichupa, 113 Phil. 306 [1961]. 5 People v. Cid, 66 Phil. 354 [1938]. 6 People v. Ledesma, No. L-415522, September 29, 1976, 73 SCRA 77. 7 Gamboa v. Court of Appeals, No. L-41054, November 28, 1975, 68 SCRA 308. 8 Ibid. 9 People v. Hubilo, G. R. No. 101741, March 23, 1993, 220 SCRA 389; People v. Cogonan, G. R. No. 94548, October 4, 1996, 262 SCRA 693

g. Several victims dying from separate shots constitute separate offenses and if there is no objection for duplicity, the accused should be convicted of all offenses charged in one Information.80

It is not the act of pressing the trigger like a Thompson submachine gun that determines the number of felonies committed, but the number of bullets which actually produced them.81 The firing of several bullets by the accused although resulting from one continuous burst of gunfire, constitutes several acts. Each person fell by different shots, is a victim of a separate crime of murder.82 3. Exceptions to Rule On Duplicity The rule on duplicity of offenses does not apply where the law prescribes a single penalty for various offenses such as a complex crime under Article 48 of the Revised Penal Code or special complex crime such as Robbery with Homicide or with Rape or Rape with Homicide, or Rebellion complexed with Murder, Robbery and Kidnapping.

4. Rule on Complex Crimes

The precise language of the statute used in alleging the commission of the crime is not necessary as long as in charging the commission of a complex offense like that of Robbery with Homicide, the information alleges each element of the component offenses with the same precision that would be necessary if they were made the subject of a separate prosecution.83

Thus, although the phrase by reason or on occasion of the robbery as provided for by the Revised Penal Code, was not literally used in the recital of facts alleging the commission of the two crimes of Robbery with Homicide, the Information as filed sufficiently and distinctly alleges the commission of the two crimes of robbery and homicide and adequately informs the accused of the crime charged.84

Under Article 48 of the Revised Penal Code, when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

The throwing of a hand grenade at the President with the intention of killing him resulting in the death and injuries of several persons constitutes the complex crime of Murder with Attempted Murder.85

For a criminal complaint or Information to charge the commission of a complex crime, the allegations contained therein do not necessarily have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which state that one offense was a necessary means to commit the other. The information in question in the present case contains allegations properly charging the commission of the complex crime of incriminatory machinations through unlawful arrest, and the court a 8

0

8

1

8 8 8 8

People v. Ducay, G. R. No. 86939, August 2, 1993, 225 SCRA 1. People v. Tabaco, G. R. Nos. 100382-5, March 19, 1997, 270 SCRA 32 citing Reyes I Revised Penal Code 655 [1993]. 2 Ibid. 3 People v. Victor, G. R. Nos. 75154-55, February 6, 1990, 181 SCRA 818. 4 Ibid. 5 People v. Guillen 85 Phil. 307 [1950].

quo committed error when it ordered its dismissal.86 5. No Duplicity In Rape With Homicide There is no duplicity in an Information for Rape with Homicide.87

Where seven persons committed Rape with Homicide in conspiracy with each other, every one of the seven accused may separately be charged for rape with homicide.88 6. No Duplicity In Charge Of Estafa There is no duplicity in a charge of estafa committed by the accused for misappropriation of the purchase price of several lots owned by the Hometrust Corporation which were fraudulently received by the accused against seven lot buyers on the pretext that she was authorized to do so and which she misapplied to her personal use instead of remitting the money to the owner corporation. The crime of estafa committed against the corporation and those committed against the lot buyers are definitely separate felonies. They were dictated by different criminal intents, committed under different modes of commission provided by the law on estafa, perpetrated by different acts, consummated on different occasions, and caused injury to different parties.89 7. Illegal Possession of Firearm and Unlawful Killing with the Use Thereof In case Homicide or Murder is committed with the use of unlicensed firearm, such use of unlicensed firearm shall be merely considered as aggravating.90

R.A. 8294 amended PD No. 1866 abandoned previous rulings that qualified use of firearms and murder are separate offenses. Under the present rule, the unauthorized use of licensed or unlicensed firearm is simply an aggravating circumstance in the commission of homicide or murder and no longer a separate offense, effectively modifying People v. Quijada and its progeny. 91

Thus, is has been held that the principle of absorption does not apply to illegal possession of firearms in connection with the crime of Subversion but simply describes the mode or manner by which the violation of Section 1 of P.D. 1866 was committed so as to qualify the penalty of death.92 The charge should therefore be amended to simple Illegal Possession of Firearm, and was accordingly deemed amended by the Supreme Court.93 It should, however, be noted that under existing laws (Rep. Act no. 8294), if Homicide or Murder is committed with the use of an unlicensed firearm, such use of unlicensed firearm shall be considered merely as an aggravating circumstance and cannot be the subject of a separate prosecution.94

It does not, however, mean that there can no longer be any prosecution for the crime of illegal possession of firearm. In general, all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved (murder 8

6

8

7

8 8 9 9

9 9 9

People v. Alagao, No. L-20721, April 30, 1966, 16 SCRA 879. Sanchez v. Demetriou, G. R. Nos. 111771-77, November 9, 1993, 227 SCRA 627. 8 Ibid. 9 Ilagan v. Court of Appeals, G. R. No. 119617, December 29, 1994, 239 SCRA 575. 0 People v. Feloteo, G.R. No. 124212, June 5, 1998, 290 sCRA 627. 1 G.R. Nos. 115008-09, July 24, 1996, 259 SCRA 191 [1996]; People v. Molina, G.R. No. 115835-36, July 22, 1998, 292 sCRA 742. 2 Rep. Act No. 1700 was repealed by Rep. Act No. 7636. 3 People v. Pimentel, G.R. No. 100210, April 1, 1998, 288 SCRA 542. 4 People v. Molina, supra, Note 91.

or homicide under Section 1 and rebellion, insurrection, sedition or attempted coup d’etat under Section 3).95 8. Reckless Imprudence Cases Reckless imprudence resulting in slight physical injuries and damage to property is not a complex crime and cannot be the subject of a single information, they are separate offenses subject to distinct penalties.96

The two offenses may, however, be consolidated since under the expanded jurisdiction of the municipal trial courts, damage to property through reckless imprudence now falls under its jurisdiction.97 9. 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/her 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.

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.

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.98

4. Prosecution of Civil Action

1. Basic Rule

Rules of Court, Rule 111

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.

9

5

9

6

9 9

People v. Valdez, G.R. No. 127663, March 11, 1999, 304 SCRA 611. Reodica v. Court of Appeals, G. R. No. 125066, July 8, 1998, 292 SCRA 87 citing Lontok v. Gorgonio, Jr., No. L37396, April 30, 1979, 89 SCRA 632. 7 Rep. Act No. 7691, Sec. 2. 8

Rules of Court, Rule 110, Sec. 14.

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 therefore 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.

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.

(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 in section 2 of this Rule governing consolidation of the civil and criminal actions.

The 2000 Rules on Criminal Procedure deems as instituted with the criminal action only the civil liability arising from the offense charged. The civil liability is deemed instituted – not merely 'impliedly' instituted – with the institution of the criminal action. The independent civil actions under Articles 32, 333, 34 and 2176 of the Civil Code are no longer deemed or impliedly instituted with the criminal action or considered as waived even if there is no reservation. The reservation applies only to the civil liability arising from the offense charged. The employer may no longer be held civilly liable for quasi-delict in the criminal action as ruled in Maniago v. Court of Appeals,99 San Ildefonso Lines, Inc. v. Court of Appeals100 and all other similar cases, since quasi-delict is not deemed instituted with the criminal. If at all, the only civil liability of the employer in the criminal action would be his/her subsidiary liability under the Revised Penal Code. The rule has also done away with third party complaints and counterclaims in criminal actions. Third-party complaints and counterclaims in criminal actions have to be ventilated in a separate civil action. 2. Civil Actions Not Based on Crime Not Extinguished Acquittal in a criminal action bars the civil action arising therefrom where the judgment of acquittal holds that the accused did not commit the criminal acts imputed to him.101

The civil liability that is deemed extinguished is the civil liability based on crime. But not the civil liability based on sources of obligation other than the criminal offense although arising from the same act or 9

9

1

00

1

G.R. No. 104392, February 20, 1996, 253 SCRA 674. G.R. No. 119771, April 24, 1998, 289 SCRA 568. 01 Western Institute of Technology v. Salas, G. R. No. 113032, August 21, 1997, 278 SCRA 216.

omission. Article 29 of the Civil Code expressly provides that when the accused in a criminal prosecution is acquitted on the ground that his/her guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence.

The civil liability therefor under Articles 32, 33 34 and 2176 of the Civil Code or those where the source of civil obligation is not based on the criminal offense is not affected by the result of the criminal action.

In other words, the extinction of the civil liability referred to in par. (e) of Section 3, Rule 111, (1964 Rules) refers exclusively to the civil liability founded on Article 100 of the Revised Penal Code whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, culpa aquiliana includes voluntary and negligent acts which may be punishable by law. It results, therefore, that the acquittal of Reginald Hill in the criminal case has not extinguished his/her liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.102

The only civil liability that may thus be imposed in a criminal action is that arising from and consequent to the criminal liability of the accused on the principle that every person criminally liable is also civilly liable.103 This includes restitution, reparation of damages caused and indemnification of consequential damages.104 Complementary thereto, are the subsidiary civil liability of innkeepers, tavern keepers and proprietor of establishments,105 employers, teachers, persons and corporations engaged in any kind of industry, for felonies committed by their servants, pupils, workmen, apprentices, employees in the discharge of their duties.106 3. Criminal Actions To Recover Civil Liability Arising From Delict and Civil Actions Based on QuasiDelict May Proceed Simultaneously A separate civil action for damages lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both sides, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary.107 4. Extinction Of The Penal Does Not Carry With It Extinction Of The Civil But while every person criminally liable is also civilly liable, the converse is not true. Extinction of the penal does not carry with it extinction of the civil unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist.108 Similarly, a final judgment rendered in a civil action absolving the defendant from the civil liability is no bar to a criminal action109 unless the civil action is a prejudicial question which involves an issue similar or intimately related to the issue raised in the criminal, the resolution of which determines whether or not the criminal action may proceed.110

1

02

1

03

1 1 1 1

1 1 1

Elcano v. Hill, No. L-24803, May 26, 1977, 77 SCRA 98. Revised Penal Code, Art. 100. 04 Ibid, Art. 104. 05 Ibid, Art. 102. 06 Ibid, Art. 103. 07 Elcano v. Hill, supra, note 102; Jarantilla v. Court of Appeals, G. R. No. 80194, March 21, 1989, 171 SCRA 429; Ace Haulers Corporation v. Court of Appeals, G. R. No. 127934, August 23, 2000. 08 Rules of Court, Rule 111, Sec. 2(b). 09 Ibid, Sec. 5. 10 Ibid, Secs. 6 and 7.

4. PROCEDURAL CHECKLISTS ON CRIMINAL PROCEDURE

1. For Cases Cognizable By The Municipal Trial Courts

Checklist I

Things To Check/Do Upon Receipt Of Complaint Or Information

1. Check if the offense charged is within court’s jurisdiction.

2. If the offense is not within the court’s jurisdiction, dismiss complaint/information, unless the complaint presents a case for preliminary investigation by the Municipal Trial Court.

When Case is for Preliminary Investigation

1. When the case is for preliminary investigation by the Municipal Trial Court, check the complaint as well as accompanying affidavits and other supporting documents if there is ground to continue with the inquiry.

1.1 If there is no such ground, dismiss the complaint.

1.2 If there is such ground, conduct preliminary investigation following the procedure in Rule 112, Section 3.

2. Without waiting for the conclusion of the preliminary investigation, the investigating judge may issue a warrant of arrest, after conducting an examination under oath of the complainant and his/her witnesses in the form of searching questions and answers to determine existence of probable cause and the necessity of placing the respondent under immediate custody so as not to frustrate the ends of justice.

Note: For purposes of issuing a warrant of arrest during preliminary investigation, it is mandatory that an examination in writing and under oath by searching questions and answers should be conducted by the investigating judge.111

2.1 If there is probable cause but no such 'necessity,' do not issue arrest warrant; only issue the subpoena to respondent, attaching thereto a copy of the complaint, affidavits, and other supporting documents with the directive to submit counter affidavits within ten (10) days from receipt of order.

2.1.1 Illustrative case: Where no such 'necessity' exists

The issuance of warrant of arrest by the Municipal Judge conducting preliminary investigation is left to his/her sound judgment and discretion. The Supreme Court sustained Judge Samulde’s refusal to issue an arrest warrant, holding that under the applicable rule, it is not obligatory, but merely discretionary, upon the investigating judge to issue a warrant for the arrest of the accused, for the determination of whether a probable cause exists and whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his/her sound judgment or discretion. In this particular case, since the robbery charge was offshoot of a boundary dispute between the two property owners, the investigating judge did not believe there was any danger of the accused absconding before the filing of the information against him by the fiscal, hence, he found no need to place him under immediate custody.112

2.2 If, however, his/her findings and recommendations are affirmed by the provincial fiscal or city 1

11

1

12

Rules of Court, Rule 112, Sec. 6 (b); Ortiz v. Palaypayon, A. M. No. MTJ-93-823, July 25, 1994, 234 SCRA 391. Samulde v. Salvani. Jr., No. L-78606, September 26, 1988, 165 SCRA 734.

prosecutor or by the Ombudsman or his/her deputy, and the corresponding information is filed, he shall issue a warrant of arrest.113

3. If there is possible cause and such 'necessity', issue arrest warrant.

When Case is for Trial on the Merits

1. If the case presented by complaint or information is within the jurisdiction of the Municipal Trial Court, check if case is for 'summary procedure' or 'regular procedure.'

1.1 Summary Procedure Cases

1.1.1 Make preliminary determination whether to dismiss case outright for being patently without basis or merit or to require further proceedings to be taken.

1.1.2 When further proceedings are required, set the case for immediate arraignment of the accused who is under custody and if he pleads not guilty, render judgment forthwith; if he pleads not guilty, he shall be released without bail unless he is a recidivist, fugitive from justice, is charged with physical injuries, does not reside in the place where the violation of the law or ordinance was committed, or has no known residence.

1.2 Regular Procedure Cases

1.2.1 If the case is commenced by complaint or information, the procedure in section 3 (a), Rule 112 shall be observed;

1.2.2 If within ten (10) days from the filing of the complaint or information, the judge after evaluating the evidence or after personally examining in writing and under oath the complainant and his/her witnesses, the judge finds no probable cause he shall dismiss the case unless it is deemed necessary to require submission of affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause which should be done within ten (10) days from notice.

1.2.3 If the case is commenced by complaint, the court may either evaluate the supporting affidavits or personally examine in writing and under oath the complainant and his/her witnesses in the form of searching questions and answers to determine if there is probable cause; if there is, issue arrest warrant; otherwise, dismiss the case outright.

1.2.4 The court may, however, opt not to 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 a 1

13

Rules of Court, Rule 113, Sec. 5 (b).

summons instead of a warrant of arrest. This refers only to cases which do not require preliminary investigation.114

1.2.5 'Searching Questions and Answers' means only, taking into consideration the purpose of the preliminary examination which is to determine whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial, such questions as have tendency to show the commission of a crime and the perpetrator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and the place of its commission, the possible motives for its commission; the subject, his/her age, education, status, financial and social circumstances, his/her attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his/her age, status, family responsibilities, financial and social circumstances, characteristics, etc. The points that are subject of inquiry may differ from case to case. The questions, therefore, must to a great degree depend upon the judge making the investigation.

1.2.6 Form of Searching Questions for Simple Theft (The witness is duly sworn to and gives his/her name and other personal circumstances)

Q. - Are you the same complainant in this complaint for simple theft?

A. -

Q. - Describe the ring allegedly stolen from you.

A. -

Q. – When and how did you learn that your ring was stolen?

A. –

Q. – When and how did you come to know the accused?

A. –

1

14

Ibid, Rule 112, Sec. 9 (b).

Q. – Where does the accused reside?

A. –

Q. – Do you know the accused’s present whereabouts?

A. –

Q. – Is the accused related to you by blood or marriage?

A. –

Q. – Did you have any kind of dealing with the accused before the date in question? If so, what?

A. –

Q. – Do you know of any reason why the accused would take your ring without your consent?

A. –

Q. – Do you owe the accused anything?

A. –

Q. – When and how did you acquire the ring?

A. –

Q. – What is the approximate value of the ring?

A. –

Q. – Did you actually witness the taking of your ring?

A. –

Q. – State the name or names of the person or persons, if any, who know the alleged theft.

A. –

Q. – Do you wish to state anything else?

A. 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.

Checklist II

Things To Check/Do After The Issuance Of Arrest Warrant And Before Trial Stage

1. If arrest warrant was properly released and a report has been properly submitted but accused could not be apprehended for a considerable length of time, issue alias arrest warrant and order for archiving of case.

1.1 If report is submitted with accused being arrested and he does not post bail forthwith, issue corresponding commitment pending trial and have it served on warden or head of the jail or place of detention, along with the corresponding notice to produce the accused before the court for arraignment on the date and time already fixed by the court.

1.2 In case of a summary procedure case and accused is arrested under an arrest warrant issued for failure of accused to appear when required (per second paragraph Section 10 of the Summary Rule), set case for immediate arraignment, the warden or head of the jail or place of detention likewise being served with corresponding commitment pending trial and notice to produce the accused for arraignment before the court.

1.3 If accused files bail bond, cash bond deposit, or recognizance, check sufficiency of documentation, particularly the corresponding signatures on the requisite documents, and if in

order, approve it and issue corresponding release order for immediate service on officer concerned.

2. At the scheduled arraignment, judge shall inform accused who appears without counsel of his/her right to counsel and shall ask accused if he desires to have one.

2.1 In proper cases, appoint counsel de oficio for the accused who appears without counsel.

3. Arraignment must be in open court; accused must be furnished a copy of the complaint or information; accused must be present at the arraignment and plea must be made of record; if accused refuses to plead, or he makes a conditional plea of guilty (e.g., entering a plea of guilt provided the penalty to be meted shall only be a fine), then enter a plea of not guilty for the accused.

4. If accused wants to plead guilty to lesser offense, both prosecutor and offended party must consent thereto.

5. If accused pleads guilty, impose corresponding sentence, unless court desires to receive evidence to determine penalty to be imposed, including civil indemnity in the proper cases.

6. If the plea is not guilty, set case for trial.

7. After arraignment, as a measure to expedite the trial, where the accused and counsel agree, conduct a pre-trial conference, without impairing the rights of the accused, on the following matters, to wit: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of parties evidence; (d) waiver of objections to admissibility of evidence; and, (e) such other matters as will promote a fair and expeditious trial.

7.1 After pre-trial, issue order reciting the actions taken, the facts stipulated, and evidence marked.

7.2 Check if agreement/s or admission/s made entered during pre-trial were properly reduced to writing and duly signed by the parties charged and their counsel.

B. For Cases Cognizable By The Regional Trial Courts

Checklist I

Things To Do Upon Receipt Of Complaint Or Information Up To Issuance Of The Warrant Of Arrest

1. Check if, on the face of the information/complaint, the court has jurisdiction over the case; otherwise, dismiss it and order the release of the accused if under detention insofar as the case is concerned.

2. Check if a claim for damages other than actual alleged in the information/complaint, and if in the affirmative, ascertain whether appropriate filing/docket fee for said claim has been paid to the clerk of court. If the requisite filing/docket fees have not been paid at the time of the filing of the information/complaint, issue an order to the offended party to pay the requisite filing/docket fees within a reasonable time.

3. If accused is detained, issue a commitment/detention order to the warden/jailers; if the accused is at large, issue a warrant for his/her arrest, in accordance with the succeeding steps.

4. When warrant of arrest may issue

Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor 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 the 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.

5. If not satisfied upon the filing of information/complaint that probable cause exists, order the prosecutor to submit the records of the case and if based thereon, there is probable cause, issue a warrant of arrest. Otherwise, dismiss the case.

6. If the charge is bailable, fix the amount of bail either in the commitment/detention order or warrant of arrest.

Checklist II

Incidents After Issuance Of Warrant Of Arrest Or Commitment Order

1. Once the accused is arrested or otherwise taken into custody, issue a commitment order and set the case for arraignment.

2. When the accused is under preventive detention, his/her 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 shall be held within ten (10) days after arraignment.115

3. 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.116

4. If there is failure to execute the warrant of arrest or no report is made within ten (10) days from receipt of the warrant by the executing officer, issue an alias arrest warrant and order the archiving of the case, furnishing a copy of the said order to the complainant.

5. If bail is a matter of right, and the accused files bail, ascertain if all the requirements for the bail are complied with, as follows: 1

15

1

16

Rules of Court, Rule 116, Sec. 1 (e). Rules of Court, Rule 116, Sec. 1 (g); SC Circular No. 38-98.

5.1 Cash Bond

5.1.1 The official receipt or certificate of deposit of the amount of bail fixed by the court who filed the information/complaint, issued by the government officer concerned, is attached to records of the case.

5.1.2 The written undertaking, executed by the accused containing all the conditions contained in Section 2 of Rule 114 of the Revised Rules on Criminal Procedure, as amended, is attached to the records of the case.

5.2 Corporate Surety

5.2.1 Photocopy of the Certification issued by the Supreme Court, accompanied by the photocopies of receipts of payment by the surety company of the requisite fees to the Supreme Court is attached to the bond.

5.2.2 Certificate of the Clerk of Court of the Regional Trial Court where the case is filed and pending showing that the bonding company does not have any pending obligations/liabilities to the government, consisting of writs of execution and/or confiscated bonds in criminal cases and that bonding company was issued a Certificate of Authority by the Insurance Commission and presently updating its obligation.

5.2.3 Certificate of Authority issued by the Insurance Commission.

5.3 Property Bond

5.3.1 Affidavit of surety/ sureties taken before the judge or submitted to the judge, stating therein that each of the sureties possesses the qualifications as provided for in Section 12 of Rule 114 of the 2000 Rules on Criminal Procedure and describing the property offered as bond for the accused, the nature of the title of the property, the encumbrances thereon, the number and amount of other bonds entered into by him/them and remaining undischarged, and his/her/their other liabilities, if any.

5.3.2 Owner’s duplicate of the original Certificate of Title of the surety/sureties covering the property offered as bond, if registered under the Torrens system or, the Owner’s copy of the declaration of Real Property, if unregistered.

5.3.3 Certificates of Payment of Realty Taxes on the property offered as bond. If the property is sufficient, and the requisite affidavit is submitted to the court, approve the bond and order the accused to cause the annotation of the lien, within ten (10) days from the receipt by the accused of the court, at the back of the title to the property, if registered, or in the Registration Book, if unregistered, and on the corresponding tax declaration in the Office of the Provincial and Municipal Assessor concerned.

Upon compliance by the accused of order of the court, issue an order releasing the accused from detention.

6. In either case, the accused should submit photographs (passport size) taken within the last six (6) months showing the face, the left and right profiles of the accused and attached to the records, and the written undertaking containing the conditions set forth in Section 2 of Rule 114 of the 2000 Rules on Criminal Procedure, as amended.

7. If the accused fails to comply with the order of the court for the annotation of the lien and for the registration of the annotation, cancel the property bond.

8. If the accused applies for release on recognizance, set the hearing of the application and give reasonable notice of the hearing to the prosecutor with the requirement to submit the comment and recommendation in the application.

8.1 Definition of Recognizance

An obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial; a contract between the sureties and the State for the production of the principal at the required time.117

8.2 Recognizance may be allowed in the following instances:

8.2.1 The charge against the accused is for violation of a municipal or city ordinance, a light felony and/or a criminal offense prescribed penalty for which is not higher than six (6) months imprisonment and/or a fine of Php 2,000, or both, provided the accused has established, to the satisfaction of the court, the inability to post the required cash or bail bond.

8.2.2 When the accused has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he/she may be sentenced. However, if the maximum penalty to which the accused is sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

8.2.3 At the discretion of the Court, if the accused has been in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without applying the Indeterminate Sentence Law or any modifying circumstances.

8.2.4 At the discretion of the court, and, upon recommendation of the Department of Social Welfare and Development (DSWD) or other agency or agencies, if the accused is a youthful offender over nine (9) but under eighteen (18) years at the same time of the commission of the offense charged, in which case, the accused may be released on 1

17

People v. Abner 87 Phil. 566 [1950].

his/her own cognizance or to the custody of his/her parents or of a suitable person who shall be punishable for the appearance of the accused when required.

9. Where the accused is charged with a capital offense which, under the law at the time of the application for bail is punishable by death or reclusion perpetua, and the accused files an application for bail, give reasonable notice of the hearing to the prosecutor or require him to submit his/her recommendation.

10. If the prosecutor, where bail is a matter of discretion, objects to the application of the accused for bail, hold in abeyance resolution of the application until the arraignment of the accused.

11. If the case is not dismissed and the accused is under arrest, order the Branch Clerk of Court to schedule the arraignment of the accused with notice to the complainant.

3. Common Procedures in First and Second Level Courts

Checklist I

Things To Do At The Arraignment Of The Accused118

1. 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 1

18

Rules of Court, Rule 116.

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.

2. The accused must be present at the arraignment and must personally enter his/her plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.

3. Before the reading of the Information, where the accused is not assisted by counsel de parte, inform him/her of his/her right to counsel of his own choice and inquire from him if he/she desires to engage his/her own counsel. Unless the accused is allowed to defend himself in person, and the accused is amenable to a counsel de oficio, appoint a competent and responsible counsel de oficio for him.

4. 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/her plea before proceeding with the arraignment.

5. When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

6. When the accused pleads guilty but presents exculpatory evidence, his/her plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

7. The private offended party shall be required to appear at the arraignment for purposes of pleabargaining, determination of civil liability, and other matters requiring his/her 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.119 Unless the civil action has been reserved, waived or otherwise instituted ahead, reset the case for the reception of evidence to determine the civil liability and the imposable penalty.

8. 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/her plea of not guilty. No amendment of the complaint or information is necessary.120

9. Plea of guilty to capital offense; reception of evidence

When the accused pleads guilty to a capital offense, the court (a) shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his/her plea and (b) shall require the prosecution to prove his/her guilt and the precise degree of culpability. The accused may present evidence 1

19

1

20

SC Circular No. 1-89. SC Circular No. 38-98, Sec. 4.

in his/her behalf.

10. Plea of guilty to non-capital offense; reception of evidence, discretionary

When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.

11. 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.

12. If a 'Not Guilty' plea is entered, schedule the pre-trial of the case with due notice to the offended party/arresting officer.

13. If the accused is under preventive detention, the pre-trial conference of the case shall be held within ten (10) days after arraignment.

14. In other cases, 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.121

15. If the accused appears to be suffering from an unsound mental condition which effectively renders him/her unable to fully understand the charge against him/her and to plead intelligently thereto, suspend the arraignment and order the accused’s mental examination; and if necessary, accused’s confinement for such purpose.

16. Upon motion of the accused, suspension of his/her arraignment may be allowed on any of the following grounds:

16.1 The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his/her mental examination and, if necessary, his/her confinement for such purpose.

16.2 There exists a prejudicial question.

16.3 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 1

21

SC Circular No. 38-98, Sec. 2.

sixty (60) days counted from the filing of the petition with the reviewing office.

Note: In People v. Alicando,122 the Supreme Court held that a conviction in capital offenses cannot rest alone on a plea of guilt. The trial court must require the prosecution to prove the guilt of the appellant and the precise degree of his/her culpability beyond reasonable doubt.

1

22

People v Alicando, G. R. No. 117487, December 12, 1995, 251 SCRA 293.

Checklist II

Pre-Trial

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 matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.123

Things To Do During The Pre-Trial Conference

1. Determine and consider with the parties and counsel mutually satisfactory plea-bargaining arrangements, such, as for example, the following:

1.1 for the accused to change his/her plea to a lesser or different offense in return for the dismissal of other count/s with or without credit, for the plea of guilty as a mitigating circumstance; or

1.2 for the accused to change his/her plea of not guilty to that of guilty to one or some of the counts of a multi-count indictment in return for the dismissal of other count/s with or without credit for the plea of guilty as a mitigating circumstance; or

1.3 for the accused to change his/her plea of not guilty to that of guilty to the offense charged, in return for the offended party’s waiver of the whole or part of the civil liability or damages; or 1

23

Rules of Court, Rule 118, Sec. 1; SC Circular No. 38-98, Secs. 2 and 3.

1.4 for the accused to change his/her plea of not guilty to that of guilty plea to the offense charged, in return for the elimination of one, some, or all of the generic aggravating circumstances alleged in the information/complaint; or

1.5 for the accused to plea bargain on the nature, duration or the amount of the imposable penalty within the allowable range.

When There Is Plea Bargaining

1. The accused and his/her counsel shall manifest that they agree to enter into plea bargaining on any of the forms above-described. If the prosecution and offended party agree to the plea offered by the accused, the court issues an order making on record the plea bargaining arrived at and duly implemented.

2. In case of any such change of plea to one of guilty, proceed to receive evidence on the civil aspect before rendering judgment, unless the offended party waives civil action or his/her claim for civil liability or damages, reserves the right to institute the civil action separately, or has instituted the civil action before the criminal action.

3. Render and promulgate judgment of conviction, including therein, in the proper case, the civil liability or damages duly established by the evidence.

When There Is No Plea Bargaining

1. Cause the marking for identification of the parties respective exhibit/s, if any,

2. Determine and consider with the parties and counsel such stipulation of facts, admission, and/or agreement as may be feasible, such as, for example:

2.1 the identity of the accused;

2.2 the court’s territorial jurisdiction relative to the offense/s charged;

2.3 the qualification of expert-witness/es;

2.4 the amount of damages;

2.5 the genuineness and due execution of documents; and/or,

2.6 the cause of death or injury in proper cases.

2. If convenient, forthwith cause to be reduced into writing and duly signed by the parties, particularly by the accused and his/her counsel, such stipulation, admission, and/or agreement as may be directly related to any essential element of the offense/s charged. Otherwise, incorporate admissions, agreements, stipulations in the pre-trial order to be issued after the pre-trial conference, and require the parties and counsel to sign the same.

3. Determine and consider with the parties and counsel the following and such other matters as will promote a fair and expeditious trial, to wit:

3.1 the number of witnesses to be presented;

3.2 the approximate number of hours that will be required by the parties for the presentation of their respective evidence; and

3.3 the specific trial dates needed to complete evidence presentation by all the parties which must be within a period of three (3) months from the first trial.

4. Fix the trial dates for the parties’ presentation of their respective evidence inclusive of evidence in-chief and rebutting evidence, and cause the parties and their respective counsel to affix their signatures in the minutes to signify their availability on the scheduled dates.

5. Require the parties to submit to the branch clerk before leaving the court premises the names and addresses of witnesses that need to be summoned by subpoena, so that the necessary subpoena may be issued on time. Counsel or their representatives may be allowed to serve the subpoenas to insure service thereof and the submission of the returns on time.

6. 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.124

7. 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/her lack of cooperation, the court may impose proper sanctions or penalties.125

1

24

1

25

Rules of Court, Rule 118, Sec. 2; SC Circular No. 38-98, Sec. 4. Rules of Court, Rule 118, Sec. 3; SC Circular No. 38-98, Sec. 5.

8. 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.126

Checklist III

What To Do After Pre-Trial To Initial Trial

1. Cause subpoena to be issued: Subpoena ad testificandum may be signed by the clerk or branch clerk of court. But subpoena duces tecum must be signed by the judge (who must determine that the subject thereof is prima facie relevant).

2. If petition for bail is filed by the accused who is charged with an offense punishable by death or reclusion perpetua:

2.1 Set the petition for hearing and require the prosecutor to comment thereon, either by way of recommendation or opposition. Such notice of hearing should also be served upon all other accused, if any.

2.2 If the prosecutor opposes the petition, allow him to present his/her evidence to show that the prosecution’s available evidence is strong. Hearing may be summary or otherwise. Crossexamination by the petitioner and any other accused shall be allowed. Petitioner shall also be allowed to offer and present evidence. Summary hearing is one that focuses on quantity and character of proof in anticipation of that to be presented at the regular trial, but not to be mere 1

26

Rules of Court, Rule 118, Sec. 4.

sham or pretense.127

2.3 Even if the prosecutor recommends bail or interposes no objection to the petition for bail, the court must still set the case for hearing.

2.4 Resolve the petition for bail with a narration of the evidence collectively deemed either strong or weak to justify the conclusion made.

2.5 Indispensable requirements

There must be a hearing.128 Evidence of guilt must be strong. Prosecution must be given full opportunity to present evidence.129

Note: The Court may not grant bail simply for non-appearance of the prosecution but should ask the prosecution such questions as would ascertain the strength of the state in evidence and judge the adequacy of the bail.130

2.6. Duties of a Judge in case an application for bail for crimes punishable by reclusion perpetua or higher

In the light of the applicable rules on bail and the jurisprudential principles just enunciated, the Court laid down the duties of the trial judge in case an application for bail is filed:

2.6.1 Notify the prosecutor of the hearing of the application for bail or require him to submit his/her recommendation;131

2.6.2 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;132

2.6.3 Decide whether the evidence of guilt of the accused is strong based on the summary 1

27

1

28

1

1

1 1

Ocampo v. Bernabe, 77 Phil. 55 [1946]. Basco v. Rapatala, A. M. No. RTJ-96-1335, March 5, 1997, 269 SCRA 230. 29 People v. Dacudao, G. R. No. 81389, February 21, 1989, 170 SCRA 489; People v. San Diego, No. L-29676, December 24, 1968, 26 SCRA 522; People v. Calo, G. R. No. 88531, June 18, 1990, 186 SCRA 620; Morado v. Tayao, A. M. No. 93-8-1204RTC, February 7, 1994, 229 SCRA 723; Corpus v. Maglalang, G. R. No. 78162, April 19, 1991, 196 SCRA 41; Almeron v. Sandido, A. M. No. MTJ-97-1142, November 6, 1997, 281 SCRA 415. 30 Librarios v. Dabalos, A. M. No. RTJ-89-286, July 11, 1991, 199 SCRA 48 cited in Borinaga v. Tamin, A. M. No. RTJ93-936, September 10, 1993, 226 SCRA 206; Aurillo v. Francisco, A. M. RTJ-93-1097, August 12, 1994, 235 SCRA 283; Aguirre v. Belmonte, A. M. No. RTJ-93-1052, October 27, 1994, 237 SCRA 778; Santos v. Otilida, A. M. No. RTJ94-1217, June 16, 1995, 245 SCRA 56; De los Santos-Reyes v. Montesa, A. M. No. RTJ-93-983, August 7, 1995, 247 SCRA 85; Tabao v. Espina, RTJ-96-13447, June 14, 1996, 257 SCRA 298. 31 Rules of Court, Rule 114, Sec. 18. 32 Rules of Court, Rule 114, Secs. 7 and 8.

of evidence of the prosecution;133

2.6.4 If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond.134 Otherwise, petition should be denied.135

TEN COMMANDMENTS FOR A JUDGE ON APPLICATIONS FOR BAIL

1. Do not grant bail unless the accused is in legal custody.136

2. Do not act on an application for bail or set it for hearing unless you have jurisdiction over the person of the accused and of the case.137

3. Do not grant bail in non-bailable offenses without application and notice to the prosecutor and in bailable offenses without notice to or recommendation of prosecutor.138

4. Do not grant bail in non-bailable offenses without a hearing.139 (Even if the investigating judge had granted bail or the prosecutor in filing the Information had recommended bail.)

5. Do not grant bail in non-bailable offenses without giving the prosecution full opportunity to present its evidence.140

6. Do not grant bail in non-bailable offenses simply because of the prosecution’s non-appearance. 141

7. Do not grant bail on appeal after the accused have been convicted of a non-bailable offense142 or from a 1

33

1

34

1

1

1

1 1

1

1

1

Baylon v. Sison, A. M. No. 92-7-360-0, April 6, 1995, 243 SCRA 284. Rules of Court, Rule 114, Sec. 19. 35 Basco v. Rapatalo, A. M. No. 96-1335, March 5, 1997, 269 SCRA 220 reiterated in People v. Cabral, G. R. No. 131909, February 18, 1999, 303 SCRA 361. 36 Feliciano v. Pasicolan, No. L-14567, July 31, 1967, 2 SCRA 888; Mendoza v. CFI of Quezon, Nos. L-35612-14, June 27, 1973, 51 SCRA 369; Paderanga v. Court of Appeals, G. R. No. 115407, August 28, 1995, 247 SCRA 741; Aguirre v. Belmonte, supra, note 130; De los Santos-Reyes v. Montesa 247 SCRA 85. 37 Dinapol v. Baldado, A. M. No. RTJ-92-898, August 5, 1993, 225 SCRA 110; Borinaga v. Tamin, supra, note 130; Aguirre v. Belmonte, supra, note 130. 38 Rules of Court, Rule 114, Sec. 18; Chin v. Gustilo, A.M. No. RTJ-94-1243, August 11, 1995, 247 SCRA 175. 39 Rules of Court, Rule 114, Sec. 18; Borinaga v. Tamin, supra, note 130, Go v. Court of Appeals, April 7, 1993, 221 SCRA 397; People v. Dacudao, G. R. No. 81389, February 21, 1989, 170 SCRA 489; People v. Casingal, G. R. No. 87163, March 29, 1995, 243 SCRA 37; Lardizabal v. Reyes, A. M. No. MTJ-94-877, December 5, 1994, 238 SCRA 640; Tabao v. Espina, supra, note 130; Santos v. Otilida supra, note 131. 40 People v. Dacudao, supra, note 129; Borinaga v. Tamin, supra, note 130; Guillermo v. Reyes, 240 SCRA 154; Mamolo, Sr. v. Narisma, A. M. No. MTJ-96-1072, January 31, 1996, 252 SCRA 613; People v. Calo, G. R. No. 88531, June 18, 1990, 186 SCRA 620. 41 Borinaga v. Tamin , supra, note 130; Libarios v. Dabalos, A. M. No. RTJ-89-286, July 11, 1991, 199 SCRA 48; Aguirre v. Belmonte, supra, note 130; Baylon v. Sison, supra, note 133; Tucay v. Domagas, A. M. No. RTJ-95-1286, March 2,1995, 242 SCRA 110; Paderanga v. Court of Appeals, G. R. No. 115407, August 28, 1995, 247 SCRA 741. 42 Adm. Circular No. 2-92; People v. Divina, G. R. Nos. 93808-09, April 7, 1993; 221 SCRA 209; People v. Fuertes, G.

non-bailable offense to a bailable offense. This should be addressed to the appellate court.143

8. Do not grant bail when the penalty imposed by the Regional Trial Court exceeds six (6) years but not more than twenty (20) years where any of the circumstances mentioned in Section 5, Rule 114 are present.144

9. Do not grant bail after the judgment has become final unless the accused has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the probation law.145

10. Do not grant bail after the accused had commenced to serve sentence.146

Checklist IV

Incidents During Trial

What To Do When There Is Application To Discharge Accused To Be State Witness

1. Applicable Rule: Section 17, Rule 119.

1 1 1 1

R. No. 90643, June 25, 1993, 223 SCRA 619; People v. Nitcha, G. R. No. 113517, January 19, 1995, 240 SCRA 283. 43 Rules of Court, Rule 114, Sec. 5. 44 Ibid. 45 Rules of Court, Rule 114, Sec. 24. 46 Ibid.

2. When applicable

Two or more persons jointly charged with the commission of the offense.

Whether to discharge more than one depends upon the need of the prosecutor and the discretion of the Judge.147

3. When to apply

Upon motion of the prosecution before resting its case.148

4. Things the Court should do

4.1 require prosecution to present evidence. Trial court should hold in abeyance or defer its resolution on the motion until the prosecution had presented all its evidence.149

4.2 require submission of sworn statement of each proposed witness at a hearing in support of the discharge and ascertain if the conditions fixed by Section 17 of Rule 119 are complied with, namely:

4.2.1 there is absolute necessity for the testimony of the defendant whose discharge is requested.150

The prosecutor must show that there is absolute necessity for the testimony of the defendant whose discharge he seeks, in order to be a witness for the prosecution151 or the accused is the only one who has knowledge of the crime and not when his/her testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution.152

Example: Where the prosecution itself admitted that one of the government witnesses, named Michael Yu testified that he saw and recognized the accused, Domingo Can as one of those who committed the robbery, such testimony is direct evidence of Can’s participation and clearly negates the absolute necessity of Daria’s testimony in identifying Can as one of the perpetrators of the crime. If at all, Daria’s testimony would be merely corroborative and not essential.153 1

47

1

48

1 1 1 1

1

People v. Baesa, 104 Phil. 136 [1958]. Rules of Court, Rule 119, Sec. 17. 49 Flores v. Sandiganbayan, No. L-63677, August 12, 1983, 124 SCRA 409. 50 Rules of Court, Rule 119, Sec. 17 (a). 51 Flores v. Sandiganbayan, supra, note 149. 52 Flores v. Sandiganbayan, supra, note 149; People v. Aniñon, No. L-39803, March 16, 1988, 158 SCRA 701; Lugtu v. Court of Appeals, G. R. No. 42037, March 21, 1990, 183 SCRA 388. 53 Can v. Galing, G. R. No. 54258, November 27, 1987, 155 SCRA 663.

4.2.2 there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant.154

4.2.3 the testimony of said accused can be substantially corroborated in its material points.155

4.2.4 said accused does not appear to be the most guilty.156

a. Meaning of not the most guilty not the least guilty. 157The rule does not require that he be the 'least guilty' but only that he not be the 'most guilty.' 158

b. Absolute certainty is not required. 159In coming to his/her conclusion as to the 'necessity for the testimony of the accused whose discharge is requested'; as to the 'availability or non-availability of other direct or corroborative evidence'; as to which of the accused is the 'most guilty'; and like, the judge must rely in a large part upon the suggestions and information furnished by the state prosecutors. 160

4.2.5 said accused has not at any time been convicted of any offense involving moral turpitude. 161

a. Concept of moral turpitude

Moral turpitude has been described as an act of baseness, vileness and depravity in the private and social duty which a man owes to us fellowmen or to society in general, 162done out of spirit of cruelty, hostility or revenge, 163but there is also authority to the effect that an act is not done when it is prompted by the sudden resentment of an injury calculated in no slight degree to awaken passion. 164In the absence, therefore, of any evidence to show the gravity and the nature of the malicious mischief committed, or at least, the value of the property destroyed and/or the circumstances under which the act of destroying was committed, we should not make haste in declaring that the crime of malicious mischief involves moral turpitude. 165

b. Examples of crimes involving moral turpitude 1

54

1

55

1 1 1 1 1 1 1 1 1 1

Rules of Court, Rule 119, Sec. 17 (b); People v. Aniñon, supra, note 152. Rules of Court, Rule 119, Sec. 17(c). 56 Rules of Court, Rule 119, Sec. 17(d). 57 Ibid, Sec. 6(d); People v. Court of Appeals, No. L-55533, July 31, 1984, 131 SCRA 107. 58 People v. Faltado 84 Phil. 89 [1949]. 59 People v. Court of Appeals, No. L-62881, August 20, 1983, 124 SCRA 338. 60 Ibid. 61 Rules of Court, Rule 119, Sec. 17(e). 62 Moore v. State 67 So. 789. 63 54 CJS 935. 64 54 CJS 935. 65 People v. Jamero, No. L-19852, July 29, 1968, 24 SCRA 206.

Estafa, 166abduction with consent, 167concubinage. 168There is no moral turpitude for conviction for or playing mahjong 169

Effects of Discharge

1. Evidence adduced in support of the discharge shall automatically form part of the trial. 170If the court denies the motion to discharge of the accused as state witness, his/her sworn statement shall be inadmissible in evidence. 171

2. Discharge of accused operates as an acquittal and bar to further prosecution for the same offense 172 except in the following cases:

2.1 Unless accused fails or refused to testify against his/her co-accused in accordance with his/her sworn statement constituting the basis of his/her discharge. 173

2.2 Failure to testify refers exclusively to defendant’s will or fault. 174

2.3 Extrajudicial Confession: Admissibility; where an accused who turns State’s evidence on a promise of immunity but later retracts and fails to keep his/her part of the agreement, his/her confession of his/her participation in the commission of the crime is admissible as evidence against him. 175

3. Erroneous or improper discharge of state witness does not affect the competency and quality of the testimony of the discharged defendant. 176

When A Motion/Petition To Suspend A Criminal Action Based Upon The Alleged Pendency Of A Prejudicial Question In A Civil Action Is Filed In The Criminal Action

1. At the hearing of the motion, ask the adverse party to comment on the motion if no such comment or opposition has not yet been filed.

2. Thereafter, determine if a prejudicial question exists. A prejudicial question is a question based on a fact 1

66

1

67

1 1 1 1 1 1 1 1 1

In re Abesamis, 102 Phil 1182 [1958]. In re Basa 41 Phil. 275 [1920]. 68 In re Isada 60 Phil. 915 [1934]. 69 Chiong v. Republic 103 Phil 1114 [1958]. 70 Rules of Court, Rule 119, Sec. 17. 71 Ibid. 72 Rules of Court, Rule 119, Sec. 18. 73 Ibid. 74 People v. Mendiola 82 Phil. 740 [1949]. 75 People v. Beberino, No. L-23092, October 29, 1977, 79 SCRA 694. 76 People v. Jamero, supra, note 165; Mangubat v. Sandiganbayan, No. L-60613, April 20, 1985, 135 SCRA 732; Ramos v. Sandiganbayan, G. R. No. 58876, November 27, 1990, 191 SCRA 671.

distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. 177Its essential elements are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; (b) the resolution of such issue determines whether or not the criminal action may proceed; and (c) the cognizance of the prejudicial question pertains to another tribunal. 178

2.1 Examples

Where a man was charged with bigamy by his second wife, a civil action filed by him against her for the annulment of their marriage on the ground that he was forced to contract said subsequent marriage is a prejudicial question to the criminal action. 179The question of validity of said marriage cannot ordinarily be decided in the criminal action for bigamy but in the civil action for annulment. The annulment on the aforesaid ground would prove that his act of contracting that marriage was involuntary; hence, no criminal liability would attach.

In a civil action brought by plaintiff to annul the sale of land by defendant to a third party – the plaintiff alleging that the same land was previously sold by the defendant to him, but defendant raised the defense that his signature appearing on the deed of sale to plaintiff has been forged – the question of validity of the sale to plaintiff, to be determined in the civil action, is prejudicial to the criminal action for Estafa filed by plaintiff against said defendant. 180

2.2 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. 181

The law limits a prejudicial question to a previously instituted civil action not to a subsequent one.

2.3 Note also although the present Rule does not specify who may file the motion or petition for suspension of the criminal proceedings on the ground of pendency of a prejudicial question, any party – the prosecutor, the accused, or the private prosecutor – may file the petition. 182

2.4 Finally, note that while such petition to suspend may be filed in the office of the prosecutor or the court conducting the preliminary investigation, it may be filed before the court trying the criminal action only 'before the prosecution rests.' 183Accordingly, the petition should be denied if it is filed after the prosecution has rested.

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77

1

78

1 1 1 1 1

Mendiola v. Macadaeg, No. L-16874, February 27, 1961, 1 SCRA 593; Benitez v. Concepcion, 112 Phil. 105 [1961]. People v. Aragon 94 Phil 357 [1954]. 79 Zapanta v. Montesa No. L-14534, February 28, 1962, 4 SCRA 510. 80 Ras v. Rasul, Nos. L-50441-42, September 18, 1980, 100 SCRA 125. 81 Rules of Court, Rule 111, Sec. 7. 82 Fortich-Celdran v. Celdran, No. L-22677, February 28, 1967, 19 SCRA 502. 83 Rules of Court, Rule 111, Sec. 6.

If a petition to suspend is filed with the Prosecutor’s Office, and the same is denied, the petition to suspend may be again filed before the Court. The determination of its finality is only provisional.

What A Judge Should Do If Accused Is Reported To Have Died 184

1. Ascertain veracity of report with submission of Death Certificate and Comment from prosecution.

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. 185

3. The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict.

4. 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 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.

5. Before ordering substitution, direct counsel for the accused to inform court of the names and addresses of the decedent’s heirs or whether or not his/her estate is under administration and has a duly appointed administrator.

6. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice

7. The title of the case should be amended to show its civil aspect by including the name of the offended party as plaintiff and the legal representative or heir of the accused substituted as defendant. 186

8. 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.

What A Judge Should Do In Case A Motion For Disqualification Or Inhibition Is Filed

A. The Rules of Disqualification and Inhibition

1. Code of Judicial Conduct 1

84

1

85

1

Revised Penal Code, Art. 89 (1). Rules of Court, Rule 111, Sec. 4. 86 Torrijos v. Court of Appeals, No. L-40336, October 24, 1975, 67 SCRA 394.

Rule 3.12. – A judge should take no part in a proceeding where the judge’s impartiality might reasonably be questioned. These cases include, among others, proceedings where:

(a) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matters in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein;

(c) The judge’s ruling in a lower court is the subject of review;

(d) The judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree;

(e) The judge knows the judge’s spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

In every instance the judge shall indicate the legal reason for inhibition.

Rule 3.13. – A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure, the parties and lawyers independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

2. Rules of Court – Rule 137

Sec. 1. Disqualification of judges. – No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of the sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

Sec. 2. Objection that judge disqualified, how made and effect. – If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competence until after final judgment in the case.

B. Distinction Between Ground For Disqualification Or Inhibition

A ground for disqualification gives the judge no discretion, while ground for inhibition is addressed

to the sound discretion of the judge. 187

C. If the judge disqualifies or inhibits himself, the inhibition is a judicial matter which does not require administrative action by the Supreme Court except under the situation discussed below:

1. The judge should send the copy of his/her Order of Inhibition or Disqualification to the Executive Judge for re-raffle of the case. 188

2. There should be no exchange of cases between the recusing judge and the judge to whom the case is re-raffled. However, appropriate adjustments must be made in the raffle of cases so that the judge to whom the case is re-raffled should be credited with one new case. And the recusing judge should be assigned one additional case to offset the case that he re-raffled.

D. Submission for approval or notation to the Supreme Court of order of inhibition is required where:

1. The judge is in a single sala seat and another judge from another seat has to be designated.

2. The judge is in a multiple sala seat and there is a conflict of opinion between the recusing judge and the judge designated on the propriety of inhibition or disqualification. 189

If the situation is not as described above, then the judge should merely send his/her order to the Executive Judge for re-raffle in a multiple sala court.

E. Significant Rulings

1. Test in inhibition is whether the parties can be assured that the case can be heard with the cold neutrality of an impartial judge. 190

2. Judge must either recuse himself or proceed with the case; he cannot do both by first disposing of the case and then inhibiting himself. 191In single sala courts, judges should exercise prudence and discretion to avoid unnecessary problems and waste of time resulting in the transfer of the case to another sala. 192

3. The mere filing of an administrative case against respondent judge is not a ground for disqualifying him from hearing the case, for if on every occasion the party apparently aggrieved would be allowed to either stop the proceedings in order to await the final decision on the desired disqualification, or demand the immediate inhibition of the judge on the basis of his/her being so charged, many cases would have to be 1

87

1

88

1 1 1 1

Pimentel v. Salanga, No. L-29734, September 18, 1967, 21 SCRA 160. SC Circular No. 10, May 22, 1987. 89 Adm. Circular No. 1, January 28, 1988. 90 Gutierrez v. Santos 112 Phil. 184 [1961]. 91 Hacienda Benito v. Court of Appeals, L-75297, August 12, 1987, 153 SCRA 46. 92 Adm. Matter No. 90-8-1863RTC, October 4, 1990, Minute Resolution.

kept pending or perhaps there would not be enough judges to handle all the cases pending in all the courts. 193

4. A judge cannot sit any case in which he was a counsel without the written consent of all the parties in interest, signed by them and entered upon the record. He cannot proceed just because there was no objection from any of the parties. The rule is explicit that he must secure the written consent of all the parties, not a mere verbal consent much less a tacit acquiescence. 194

5. The fact that the judge issued a writ of preliminary prohibitory injunction on the question of whether the carousel was an attractive nuisance, does not disqualify the judge from hearing the case on the merits because this is not yet a final determination. An adverse provisional ruling does not disqualify a judge. 195

1

93

1

94

1

Aparicio v. Andal, G. R. Nos. 86587-93, July 25, 1989, 175 SCRA 659. Lorenzo v. Marquez, A. M. No. MTJ-87-123, June 27, 1988, 162 SCRA 546. 95 McDonald’s Corporation v. Court of Appeals, G. R. No. 98699, July 15, 1991. (Minute Resolution, First Division)

6. CONDUCTING THE TRIAL

1. Supreme Court Circulars

Circular 3-99

A. Trial

1. Unless the docket of the court requires otherwise, not more than four (4) cases shall be scheduled for trial daily.

2. The Presiding Judge shall make arrangements with the prosecutor and the Public Attorney’s Office (PAO) so that a relief prosecutor and a PAO attorney are always available in case the regular prosecutor or PAO attorneys are absent.

3. Contingency measures must likewise be taken for any unexpected absence of the stenographer and other support staff assisting in the trial.

4. The issuance and service of subpoenae shall be done in accordance with Administrative Circular No. 4 dated 22 September 1988.

5. The judge shall conduct trial with utmost dispatch, with judicious exercise of the court’s power to control trial proceedings to avoid delay.

6. The judge must take notes of the material and relevant testimonies of witnesses to facilitate his decision-making.

7. The trial shall be terminated within ninety (90) days from initial hearing. Appropriate disciplinary sanctions may be imposed on the judge and the lawyers for failure to comply with the requirement due to causes attributable to them.

8. Each party is bound to complete the presentation of his evidence within the trial dates assigned to him. After the lapse of said dates, the party is deemed to have completed the presentation of evidence. However, upon verified motion based on compelling reasons, the judge may allow a party additional trial dates in the afternoon; provided that said extension will not go beyond the three-month limit computed from the first trial date except when authorized in writing by the Court Administrator, Supreme Court.

All trial judges must strictly comply with Circular No. 38-98, entitled 'Implementing the Provisions of Republic Act No. 8493 (An Act to Ensure a Speedy Trial of All Cases Before the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, and Municipal

Circuit Trial Court, Appropriating Funds Therefor, and for Other Purposes)' issued by the Honorable Chief Justice Andres R. Narvasa on September 15, 1998.

2. Compliance With Periods

1. As a constant reminder of what cases must be decided or resolved, the judge must keep a calendar of cases submitted for decision, noting therein the exact day, month and year when the 90-day period is to expire. As soon as a case is submitted for decision, it must be noted in the calendar of the judge; moreover, the records shall be duly collated with the exhibits and transcripts of stenographic notes, as well as the trial notes of the judge, and placed in the judge’s chamber.

2. In criminal cases, the judge will do well to announce in open court at the termination of the trial the date of the promulgation of the decision, which should be set within 90 days from the submission of the case for decision.

3. All Judges must scrupulously observe the period prescribed in Section 15, Article VIII of the Constitution.

3. Pertinent Rules

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. 196

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.

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. 197

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.

3. Exclusions 1

96

1

97

SC Circular 38-98, Sec. 6. Circular 38-98, Sec. 8.

The following periods of delay shall be excluded in computing the time within which trial must commence:

3.1 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 to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement.

3.2 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.

3.3 Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial.

3.4 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.

3.5 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.

3.6 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 his 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. 198

4. Factors for granting continuance

The following factors, among others, shall be considered by a court in determining whether to grant a continuance under subparagraph (f) of Section 9 of SC Circular 38-98.

4.1 Whether or not the failure to grant a continuance in the proceeding would be likely to make a continuation of such proceeding impossible or result in a miscarriage of justice; and

4.2 Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution or otherwise, 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. 199

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. 200

6. Extended time limit

Notwithstanding the provisions of section 1(g), Rule 116 and Section 1, SC Circular No. 38-98 for the first twelve-calendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be 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 shall be eighty (80) days. 201

1

98

1

99

2 2

SC Circular 38-98, Sec. 9. Ibid, Sec. 10. 00 SC Circular 38-98., Sec. 11. 01 Ibid, Sec. 7.

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 and 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:

7.1 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.

7.2 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 be sent promptly to the public attorney.

7.3 Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial.

7.4 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. 202

8. Sanctions

In any case in which private counsel for the accused, the public attorney, or the prosecutor:

8.1 Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial;

8.2 Files a motion solely for delay which he knows is totally frivolous and without merit;

8.3 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

8.4 Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows:

(1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding Php 20,000; 2

02

SC Circular 38-98, Sec. 12.

(2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding Php 5,000; 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. 203

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 to 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. 204

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. 205

11. Order of trial

The trial shall proceed in the following order:

(1) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

(2) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case.

(3) 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.

2

03

2

04

2

Circular 38-98, Sec. 13. Circular 38-98, Sec. 14. 05 Circular 38-98, Sec. 15.

(4) 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.

(5) 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.

4. How To Deal With Accused’s Motion For Examination Of His/Her Witness Before Trial

1. Check sufficiency of the motion, particularly as regards notice and service thereof, and the contents of the motion, keeping in mind that the governing rule206 requires the following:

1.1 that there be notice to all other parties:

1.2 that the motion shall state: (1) the name and residence of the witness; (2) the substance of his/her testimony; and (3) that the witness is so sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than 100 kilometers from the place of trial and has no means to attend the same, or that, apart from the foregoing, other similar circumstances exist that would make him unavailable or prevent him from attending the trial; and

1.3 that the motion shall be supported by affidavit of the accused and such other evidence as the court may require.

2. If the motion does not comply with the notice requirement, issue an order requiring compliance by movant with the notice requirement with the warning that the motion shall be disallowed if not complied with.

3. If the motion complied with the notice requirement, hear the motion at the time set therefor.

4. If the motion is found to be unmeritorious, issue an order denying it, with a concise statement of the reason(s) for the denial.

5. If satisfied that the examination of the witness is necessary, issue an order directing and providing, conformably with the governing rule207 as follows:

5.1 that the witness be examined at a specified time and place before the judge ordering the examination (or before any other judge or if not practicable, any member of the Bar in good standing so designated by the judge in the order, or, if the order be granted by a court of superior jurisdiction, before an inferior court designated in the order);

2

06

2

07

Rules of Court, Rule 119, Sec. 4 . Rules of Court, Rule 119, Sec. 5 .

5.2 that a copy of the order be served on the prosecutor within a given time prior to that fixed for the examination;

5.3 that the examination shall proceed notwithstanding the prosecutor’s absence, if it appears that he was duly notified of the hearing; and

5.4 that a written record of the testimony shall be taken.

5. How To Deal With Prosecution’s Motion For Examination Of Its Witness Before Trial

1. Check sufficiency of the motion, particularly as regards notice and service thereof, and the contents of the motion, keeping in mind that the governing rule208 requires (a) that there be notice to the accused and (b) that there be a showing that the witness is too sick or infirm to appear at the trial or has to leave the Philippines with no definite date of returning thereto.

1.1 If the motion does not comply with the notice requirement, issue an ordering requiring compliance by movant with the notice requirement, with warning that the motion shall be disallowed if not complied with.

1.2 If the motion complied with the notice requirement, hear the motion at the time set therefor.

2. If the motion is found to be unmeritorious, issue an order denying it, with a concise statement of the reason(s) for the denial.

3. If the motion is found to be meritorious, issue an order directing and providing, conformably with the said governing rule, as follows:

3.1 that the witness be examined before the court at a specified time, such examination to be conducted in the same manner as an examination at the trial;

3.2 that a copy of the order be served on the accused within a given time prior to that fixed for the examination;

3.3 that the accused shall attend the said examination and his/her failure or refusal to do so despite due notice shall be deemed a waiver; and

3.4 that the statement thus taken may be admitted in behalf of or against the accused.

2

08

Rules of Court, Rule 119, Sec. 7 .

4. At the same time set therefor, hold the hearing for the examination of the witness, the same to be conducted in the same manner as an examination at the trial, in the presence of the accused or notwithstanding his/her absence, if it appears that he was duly notified of the hearing.

6. If A Motion For Confinement Of An Accused In A Mental Hospital Is Filed

1. Set the motion for hearing on the date suggested by the movant or fixed by the court, with notice to the parties, their counsel, the prosecutor and the person having charge of the accused or his/her relatives.

2. If the accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully comprehend or stand trial:

2.1 Suspend the proceeding and order his/her mental examination and/or confinement in the National Centre for Mental Health or any mental institution in the locality recognized by the government, with a directive to the Director of the hospital or mental institution to submit a quarterly report on the accused’s mental condition.

2.2 On the basis of the report that the accused has fully recovered and can stand trial, order his/her immediate discharge and set the case for the continuation of the proceedings. 209

7. Demurrer to Evidence

1. A demurrer to evidence is a motion to dismiss the case on the ground of insufficiency of evidence after the prosecution has rested its case

2. 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. 210

3. 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.

Checklist

Steps To Take When Demurrer To Evidence Is Filed

1. Determine whether the filing of the demurrer to evidence is made after the prosecution has rested its 2

09

2

10

Rules of Court, Rule 101 . Rules of Court, Rule 119, Sec. 23.

case, otherwise, deny the motion for being prematurely filed. 211

2. If the demurrer to evidence is properly filed after the prosecution has rested its case, give the prosecution an opportunity to be heard whether in oral argument or in writing.

3. 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.

4. Court’s discretion in the grant or denial of demurrer to evidence

Judicial action on a demurrer to evidence or motion to dismiss is left to the exercise of sound judicial discretion. In the absence of a clear showing of grave abuse thereof, amounting to lack of jurisdiction, the trial court’s denial of the motion may not be disturbed and may only be reviewed in the ordinary courts of law by an appeal from the judgment after trial. Certiorari does not lie to challenge the trial court’s interlocutory order denying the accused’s motion to dismiss. Certiorari is not the proper remedy, for the error, if any, of the trial court, is an error of judgment and not of jurisdiction. The appellate court will not review in such special civil action the prosecution’s evidence and decide in advance that such evidence has or has not yet established the guilt of the accused beyond reasonable doubt.

5. When demurrer to evidence is denied

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his/her 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.

6. 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.

7. When demurrer to evidence is granted

The dismissal is one on the merits which is equivalent to an acquittal; hence, the prosecution cannot appeal as it would place the accused in double jeopardy. 212

8. 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 2

2

Aquino v. Sison, G. R. No. 86025, November 28, 1989, 179 SCRA 648; Godoy v. Court of Appeals, No. L-80814, August 30, 1988, 165 SCRA 148. 12 People v. The City Court of Silay, L-43790, December 9, 1976, 74 SCRA 247. 11

terminated within thirty (30) days from the order granting it. 213

7. JUDGMENT 1. Definition

Judgment means that adjudication by the court that the accused is guilty or is not guilty of the offense charged, and the imposition of the proper penalty and civil liability provided for by law on the accused. 214

Checklist

Steps To Take In Rendering Judgment

Rules of Court, Rule 120, Sec. 2

1. Prepare the judgment personally and directly in the official language and sign the same. 215This holds true with orders of dismissal;

2. See to it that the judgment contains a clear and distinct statement of facts proved or admitted by the accused and the law upon which the judgment is based: 216

3. If it is of conviction, state: 2

13

2

14

2 2

Rules of Court, Rule 119, Sec. 24. Rules of Court, Rule 120, Sec. 1 . 15 Abay v. Garcia, G. R. No. 66132, June 27, 1988, 162 SCRA 665. 16 People v. Escobar, G. R. No. 69564, January 29, 1988, 157 SCRA 541.

3.1 the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any;

3.2 the participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the fact;

3.3 the penalty imposed upon the accused; 217

3.4 the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived.

4. In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his/her guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.

5. When two or more offenses are charged in a single complaint or information, and the accused fails to object to it before trial, convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them setting out separately the findings of fact and law in each offense. 218

6. When there is a variance between the offense charged in the complaint or information, and that proved or established by the evidence, 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. 219

An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. 220

2. Extent of Damages Awarded in Civil Liability Arising from Crimes

Civil liability arising from crime includes, moral damages, exemplary damages and loss of earning capacity. 221 Attorney’s fees may be awarded but only when a separate civil action to recover civil liability has been

2

17

2

18

2 2 2

People v. Licerio, 61 Phil. 361 [1935]. Rules of Court, Rule 120, Section 3 ; People v. Basoy, G. R. No. 68578, July 7, 1986, 142 SCRA 476; People v. Alcid, G. R. No. 66387-88, February 28, 1985, 135 SCRA 280. 19 Rules of Court, Rule 120, Sec. 4 . 20 Rules of Court, Rule 120, Sec. 5 . 21 People v. Morallano, G. R. No. 105004, July 24, 1997, 276 SCRA 84.

filed or when exemplary damages are awarded. 222Life expectancy must be included in award of damages. 223

The court should, however, specify how much is the indemnity for death and how much is for moral damages and not lump the whole amount. 224Civil indemnity is separate from moral damages. 225

In rape cases a civil indemnity of Php 50,000 is mandatory. 226In addition, moral damages in rape is automatic without the need of pleading or any proof. 227

Civil indemnity or actual and compensatory damages if committed or effectively qualified by any of the circumstances under which the death penalty is authorized by law, the indemnity for the victim shall be increased to the amount of Php 75,000. 228

Actual damages should be supported by receipts. 229

To justify a grant of actual or compensatory damages, it is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss. 230

Where there are no aggravating circumstances, exemplary damages should not be awarded. So also actual damages if not supported by evidence may not be awarded. 231

Acquittal does not necessarily preclude civil liability, as in the following cases:

(a) Where the acquittal is based on reasonable doubt232 as only preponderance of evidence is required in civil cases; 2

2

2 2 2

2

2

2

2 2 2

People v. Teehankee, Jr., G. R. Nos. 111206-08, October 6, 1995, 249 SCRA 54; People v. Quilaton, G. R. No. 69666, January 23, 1992, 205 SCRA 279. 23 People v. Villanueva, G. R. No. 96469, October 21, 1992, 215 SCRA 22; People v. Cordero, G. R. No. 108919, October 11, 1996, 263 SCRA 122. 24 People v. Castillo, G. R. No. 116122, September 6, 1996, 261 SCRA 493. 25 People v. Mangila, G. R. Nos. 130203-4, February 15, 2000. 26 People v. Marabillas, G. R. No. 127494, February 18, 1999, 303 SCRA 352; People v. Mostrales, G. R. No. 125397, August 28, 1998, 294 SCRA 701; People v. Ilao, G. R. No. 129529, September 20, 1998, 296 SCRA 658. 27 People v. Prades, G. R. No. 127569, July 30, 1998, 293 SCRA 411; People v. Malapo, G. R. No. 123115, August 25, 1998, 294 SCRA 579; People v. Lozano, G. R. No. 125080, September 25, 1998, 296 SCRA 403; People v. Padilla, G. R. No. 126124, January 30, 1999. 28 People v. Victor, G. R. No. 127903, July 9, 1998, 292 SCRA 186; People v. Prades, supra, note 227; People v. Malapo, supra, note 227; People v. Perez, G. R. No. 122764, September 24, 1998, 296 SCRA 17. 29 People v. Cordero, G. R. No. 108919, October 11, 1996, 263 SCRA 122; People v. Cayabyab, G. R. No. 123073, June 19, 1997, 274 SCRA 387; People v. Morollano, G. R. No. 105004, July 24, 1997, 276 SCRA 84; Sumalpong v. Court of Appeals, G. R. No. 123404, February 26, 1997, 268 SCRA 764. 30 Sumalpong v. Court of Appeals, supra, note 229. 31 People v. Manggasin, G. R. No. 130599-600, April 21, 1999, 306 SCRA 228. 32 Padilla v. Court of Appeals, No. 39999, May 31, 1994, 129 SCRA 558; People v. Jalandoni, No. L-57555, August 28, 1984, 131 SCRA 454. 22

(b) Where there is a finding that the accused’s liability is not criminal but only civil in nature; 233and

(c) Where there is a finding that the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted234 as where the accused was acquitted of malversation but was held liable for the funds which were spent for unauthorized purposes.

3. Promulgation Of Judgment

1. What to do (Rule 120, Section 6, Rules of Court).

1.1 Direct the clerk of court/branch clerk of court to give notice to the accused personally or through his/her bondsman if bonded, or through the warden if detained, or through the custodian if out on recognizance.

1.2 To promulgate the judgment, direct the clerk of court/branch clerk of court to read the same in the presence of the accused and counsel de-parte or de officio.

1.3 If the conviction is for a light offense, the judgment may be read in the presence of the accused’s counsel or representative.

1.4 When the judge is absent or outside of the province or city, direct the clerk of court/branch clerk of court to promulgate the judgment.

1.5 If the accused is confined or detained in another province or city, request the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention to promulgate 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.

1.6 The proper clerk of court shall give notice to the accused personally or through his/her bondsman or warden and counsel, requiring him/her to be present at the promulgation of the decision. If the accused was tried in absentia because s/he jumped bail or escaped from prison, the notice to him/her shall be served at his/her last known address.

1.7 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/her a copy thereof at his/her last known address or thru his/her counsel.

2

33

2

34

De Guzman v. Alvia, 96 Phil 558 [1955]; People v. Pantig, 97 Phil. 748. Castro v. Collector of Internal Revenue, L-12174, April 26, 1962, 4 SCRA 1093; Republic v. Bello, No. L-34906, January 27, 1983, 120 SCRA 203.

1.8 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/her 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 remedies. S/he shall state the reasons for his/her absence at the scheduled promulgation and if s/he proves that his/her absence was for a justifiable cause, s/he shall be allowed to avail of said remedies within fifteen (15) days from notice.

4. Modification of Judgment235

1. Modify or set aside a judgment of conviction only

1.1 Upon motion of the accused and

1.2 Before the judgment has become final or appeal has been perfected. Except when the death penalty is imposed, a judgment for conviction becomes final (a) after the lapse of the period for perfecting an appeal or (b) when the sentence has been partially or totally satisfied or (c) the accused has expressly waived in writing his/her right to appeal or (d) the accused has applied for probation. 236

5. Entry of Judgment 237

1. After the judgment has become final, have it entered in the book of entries of judgments. 238

2. If no appeal or motion for new trial is filed within the time provided in the rules, direct the clerk of court/branch clerk of court to enter the judgment and prepare a certificate that such judgment has become final and executory.

8. MOTION FOR NEW TRIAL OR RECONSIDERATION

1. Grounds For New Trial239

1. That errors of law or irregularities have been committed during the trial prejudicial to the substantial 2

35

2

36

2 2 2

Rules of Court, Rule 120, Section 7. Ramos v. Gonong, No. L-42010, August 31, 1976, 72 SCRA 559. 37 Rules of Court, Rule 36, Section 2. 38 The record shall contain the dispositive part of the judgment and shall be signed by the Clerk of Court. 39 Rules of Court, Rule 121, Sec. 2.

rights of the accused;

2. That 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;

3. Meritorious circumstances as determined by the court on a case-to-case basis, such as:

3.1 retraction of a witness240

3.2 negligence or incompetency of counsel241

3.3 improvident plea of guilty;

3.4 disqualification of an attorney de officio to represent the accused in trial court242 2. Ground For Reconsideration243 1. Errors of law or fact in the judgment.

3. Form Of Motion For A New Trial Or Reconsideration244

1. The motion shall be in writing and filed with the court. 245

2. It shall state the grounds on which it is based.

3. If based on newly discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which it is proposed to introduce in evidence.

4. Steps to take

2

2

2 2 2 2

People v. Bocar, 97 Phil. 398 [1955]; People v. Curiano, Nos. L-15256-7, October 31, 1963, 9 SCRA 323, 9 SCRA 323. 41 Negligence or incompetence is not a ground for new trial unless it is so gross as to amount to deprivation of due process. 42 Jose v. Court of Appeals, No. L-38581, March 31, 1976, 70 SCRA 257 43 Rules of Court, Rule 121, Sec. 3. 44 Rules of Court, Rule 121, Sec. 4. 45 In criminal cases, the lack of affidavits of merit in a motion for new trial is not a fatal defect and can be cured by the testimony presented at the new trial. Paredes v. Borja, L-15559, November 29, 1961, 3 SCRA 495. 40

1. Ascertain whether motion is seasonably filed with notice to the prosecutor and in due form;

2. Where a motion for the decision of any question of fact: hear evidence of such motion by affidavits or otherwise; 246

3. When a new trial on the ground of errors of law or irregularities committed during the trial is granted, see to it that all the proceedings and evidence not affected by the commission of such errors and irregularities remain: set aside those affected thereby. In the interest of justice, allow the introduction of additional evidence;

4. When a new trial is granted on the ground of newly discovered evidence, let the evidence already taken stand; take and consider together with the evidence already in the record the newly discovered and such other evidence allowed to be introduced, in the interest of justice;

5. In all cases, when a new trial or reconsideration is granted, set aside the original judgment and render a new judgment accordingly. 247

2

46

2

47

Rules of Court, Rule 121, Sec. 5 . Rules of Court, Rule 121, Sec. 6 .

Checklist I

Steps From Filing Of Application To Referral Thereof To Probation Officer

1. Determine whether or not the probation application may be given due course, keeping in mind that the governing law, Pres. Decree No. 968, as amended, 248requires the following:

1.1 that an application for probation be filed with the trial court; 249

1.2 that the application be filed within the period for perfecting an appeal, that is, within fifteen (15) days from the promulgation or notice of the judgment appealed from; otherwise, the application shall not be entertained or granted; 250

1.3 that the applicant is not a disqualified offender. A disqualified offender is: (1) sentenced to serve a maximum term of imprisonment of not more than six (6) years; (2) convicted of any crime against the national security or the public order; (3) previously convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or fine of not less than Php200; (4) once on probation under the provisions of this Decree; and (5) already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. 251

2. If the application does not appear to be meritorious, issue Order denying due course to the application. Refer to the copy of Probation Court form for use as a guide in drafting the Order.

3. If the application appears meritorious, issue Order giving due course to the application. Refer to the copy of Probation Court form for use as a guide in drafting the Order.

4. In the absence of any showing that the applicant may not be placed on probation under existing laws, issue Order for post-sentence investigation to be conducted by the probation officer of the territory where the court sits. Refer to the copy of Probation Court form, for use as a guide in drafting the Order.

Sample 1 REPUBLIC OF THE PHILIPPINES

2

2 2 2

Toribio v. Diaz, G. R. No. 84623, May 8, 1992, 208 SCRA 595; Bernardo v. Balagot, G. R. No. 86561, November 16, 1992, 215 SCRA 526. 49 Last sentence, second paragraph, Sec. 4, PD 965, as amended. 50 Llamado v. Court of Appeals, G. R. No. 84850, June 29, 1989, 174 SCRA 566. 51 PD 968, Sec. 9. 48

REGIONAL TRIAL COURT OF _______________________

Branch ______________________

____________________ Judicial District

Criminal Case No. ______________

For: _________________________

(Crime)

x----------------------------------x

ORDER

It appearing from the records that the accused, (name) , is disqualified for probation for the reason that (state reason, e.g. sentenced to suffer imprisonment of more than six (6) years, his/her 'Application for Probation' filed with this Court on ____________________ is hereby denied due course.

The Branch Clerk of Court is hereby instructed to issue corresponding notices to bondsman/custodian to produce the accused or to the accused himself for the execution of sentence.

(If the accused is detained, direct Branch Clerk of Court to issue

corresponding commitment order).

SO ORDERED

Judge ___________________

Or other appropriate court

Sample 2 REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT OF _______________________

Branch ______________________

____________________ Judicial District

Criminal Case No. ______________

For: _________________________

(Crime)

x----------------------------------x

ORDER

It appearing from the 'Application for Probation' dated __________ filed with this Court on ___________ that the applicant (name) , may be placed on probation under existing laws, the application is hereby given due course.

Let a copy of this Order be served upon the (Prosecuting Officer) who may take appropriate action or submit his/her comments on the application within ten (10) days from receipt thereof.

Pending consideration of his/her application, the accused, (name) shall remain under confinement at the ____________/or is allowed temporary liberty under his/her bail bond/or is released to the custody (name) on the latter’s recognizance.

SO ORDERED.

----------------------------------

(Place)

---------------------------------

(Date)

Judge ___________________

Or other appropriate court

Sample 3 REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT OF _______________________

Branch ______________________

____________________ Judicial District

Criminal Case No. ______________

For: _________________________

(Crime)

x----------------------------------x

ORDER

The Probation Officer of ____________(Province/City)__________ is hereby directed to conduct an investigation on the application for probation of the accused (name) and to submit his/her report thereon within 60 days from receipt hereof in accordance with Section 5 and 7 P.D. 968, as amended.

The Clerk of Court is hereby ordered to furnish said Probation Officer with a copy of the decision, as well as the necessary data pertinent to the case.

The accused, (name) is hereby ordered to report to the aforesaid Probation Officer within seventy-two (72) hours from receipt of this Order.

SO ORDERED.

-----------------------------------------------------------------------

(Place)

(Date)

Judge ___________________

Or other appropriate court

Checklist II

Steps From Receipt Of Post-Sentence Investigation

Report To Issuance Of Probation Order

1. Examine and consider the probation officer’s post-sentence investigation report upon receipt thereof, 252 keeping in mind the criteria for placing an offender on probation established in Sec. 8 of the Probation Law, to wit: that in determining whether an offender may be placed on probation, the court shall consider all information relative to the character, antecedents, environment; mental and physical condition of the offender, and available institutional and community resources; and, that probation shall be denied if the court finds that: (a) the offender is in need of correctional treatment that can be provided most effectively by his/her commitment to an institution; or (b) there is an undue risk that during the period of probation, the offender will commit another crime; or (c) probation will depreciate the seriousness of the offense committed. 2

The post-sentence investigation report must be submitted by the probation officer to the Court within 60 Days from receipt of the court’s order to conduct the investigation. 52

2. Determine after such examination and consideration of said report whether to deny or grant the application for probation, keeping in mind that the court must resolve the said application not later than fifteen (15) days after receipt of the post-sentence investigation report from the probation officer. 253

2.1 If you resolve to deny the probation application, issue Order denying the application, setting forth a concise statement of the reason/s for the denial.

2.2 If you resolve to grant the probation application, issue Order (referred to in the Probation Law as the 'probation order') 254granting the application (see attached copy of such order for use as a guide in drafting the probation order), keeping in mind the following particulars required by the governing law, to wit: (a) that the probation order shall contain the following mandatory conditions, namely: (1) that the probationer shall present himself to the probation officer designated to undertake his/her supervision at such place as may be specified in the order within 72 hours from receipt of said order; and (2) that the probationer shall report to the probation officer at least once a month at such time and place as specified by said officer; (b) that the probation order shall state the period of probation; 255and (c) that the court may impose other conditions provided the same are related to the rehabilitation of the probationer and not unduly restrictive of his/her liberty or incompatible with his/her freedom of conscience. 256

3. Issue probation order to the accused, at the same time informing him of the consequences of said Order (such as, that the Order does not set aside or otherwise do away with the judgment of conviction and that it merely suspends the execution of the sentence to give way to the probation) and explaining that upon his/her failure to comply with any of the conditions prescribed in the Order or his/her commission of another offense, he shall serve the penalty imposed in the said judgment. 257

Checklist III

How To Deal With Incidents During Probation

I. Modification of Probation Condition/s or Period

1. On receipt of the application for modification of the condition/s and/or period of probation, direct the clerk of court to set the application for hearing, with due notice to the probationer and the probation officer, keeping in mind that the governing law258 provides that during the probation period, the court may, upon application of either the probationer or the probation officer, revise or modify the conditions or period of probation and that both probationer and probation officer must be given an opportunity to be heard thereon.

2. Hear the probationer and the probation officer on the application on the date and hour set for hearing thereof. 2

53

2

54

2 2 2 2

An order granting or denying probation shall not be appealable. Last para., sec. 4, PD 968, as amended. PD 968, Sec. 4. 55 PD 968, Secs. 10 and 14. 56 PD 968, Sec. 10( k). 57 PD 968, Sec. 11. 58 PD 968, Sec. 12, 1st par.

3. If you find the application to be unmeritorious, issue Order denying it, with due notice to the probationer and the probation officer.

4. If you find the application to be meritorious, issue Order granting it259 with due notice to the probationer and the probation officer.

II. Revocation of Probation

1. On your own initiative or upon receipt of proper application, issue Order setting forth the violation of the probation conditions charged against the probationer and directing the issuance of a warrant for his/her arrest since the governing law260 provides pertinently that at any time during probation, the court may issue a warrant for the arrest of the probationer for any serious violation of the probation conditions; that once arrested, the probationer shall immediately be brought before the Court for a hearing of the violation charged; that the defendant may be admitted to bail pending such hearing; and, that the provisions regarding release on bail of persons charged with a crime shall be applicable to the probationer in such case.

2. Upon receipt of the return on the probationer’s arrest and detention pursuant to said warrant, direct the clerk of court to set the charge against the probationer for hearing, with due notice to the probationer and the probation officer.

3. Conduct the hearing as scheduled, keeping in mind that the governing law261 provides pertinently that the hearing shall be summary in nature; that the court shall not be bound by the technical rules of evidence but may inform itself of all the facts which are material and relevant to ascertain the veracity of the charge; that the probationer shall have the right to be informed of the violation charged and to adduce evidence in his/her favor; and, that the State shall be represented by a prosecuting officer in any contested hearing.

4. If the violation is established, issue Order either revoking the probation or continuing the probation and modifying the conditions thereof, keeping in mind that the governing law262 provides pertinently that if the grant of probation is revoked, the court shall order the probationer to serve the sentence originally imposed and that an Order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable. 263

5. If the grant of probation is revoked, issue Order of commitment on final sentence.

6. If the violation is not established, issue Order dismissing the charge and continuing the probation under the same terms and conditions of the Probation Order, with corresponding directive for the probationer’s immediate release from custody or the cancellation of his/her bail bond, as the case may be.

2

59

2

60

2 2 2

PD 968, Sec. 12, 2nd par. PD 968, Sec. 13, 1st par. 61 PD 968, Sec. 18, 2nd par. 62 PD 968, Sec. 13, last par., 2nd par. 63 Baclayon v. Mutia, No. L-59298, April 30, 1984, 129 SCRA 148; Bala v. Martinez, G. R. No. 67301, January 29, 1990, 181 SCRA 459.

III. Transfer of Control over Probationer

1. On receipt of application therefor, examine and determine if the same is meritorious or not.

2. If meritorious, issue Order granting the application, keeping in mind that the governing law264 provides pertinently that whenever a probationer is permitted to reside in a place under the jurisdiction of another court, control over him shall be transferred to the Executive Judge of the Regional Trial Court (formerly, the Court of First Instance) of that place265 and in such a case, a copy of the Probation Order, the postsentence investigation report, and other pertinent records shall be furnished the said Executive Judge, and thereafter, the said Executive Judge shall have the power with respect to the probationer that was previously possessed by the court which granted the probation to the defendant.

IV. Termination of Probation

1. After the period of probation and upon consideration of the corresponding report and recommendation of the probation officer, issue Order directing the final discharge of the probationer if you find that he has fulfilled the terms and conditions of his/her probation, keeping in mind that the governing law266 provides pertinently that upon the issuance of such Order the case is deemed terminated; that the final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his/her conviction and to fully discharge his/her liability for any fine imposed as to the offense for which probation was granted and that the probationer and the probation officer shall each be furnished a copy of such Order. 267

Probation Court Form No.

(Order Revoking Probation) REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF _______________________

Branch ______________________

____________________ Judicial District

Criminal Case No. ______________

2

64

2

65

2 2

PD 968, Sec. 13, 2nd par. Bala v. Martinez, supra, note 262. 66 Sec. 16, PD 968 67 Bala v. Martinez, supra, note 262.

For: _________________________

(Crime)

x----------------------------------x

ORDER

Upon the recommendation dated ______________ of the Probation Officer assigned to this case and finding the same to be well taken, the same is approved and the probation granted to the accused, (name) , is hereby revoked.

The execution of the sentence originally imposed upon the said accused is

hereby set for

(Date)

at

(Place)

.

Let copies of this Order be furnished the probationer and the probation officer.

SO ORDERED

--------------------------------

-------------------------------------

(Place)

(Date)

Judge ___________________

Or other appropriate court Probation Court Form No. (Order Modifying the Conditions of Probation) REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF _______________________

Branch ______________________

____________________ Judicial District

Criminal Case No. ______________

For: _________________________

(Crime)

x----------------------------------x

ORDER

Upon the recommendation dated ________________ of the Probation Officer assigned to this case and finding the same to be well taken, the probation is hereby modified as follows:

Let copies of this Order be furnished the probation and the probation officer.

SO ORDERED

--------------------------------

-------------------------------------

(Place)

(Date)

Judge ___________________

Or other appropriate court Probation Court Form No. (Order Modifying the Conditions of Probation) REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF _______________________

Branch ______________________

____________________ Judicial District

Criminal Case No. ______________

For: _________________________

(Crime)

x----------------------------------x

ORDER

Upon the recommendation dated ________________ of the Probation Officer assigned to this case and finding the same to be well taken, the probation is hereby modified as follows:

Let copies of this Order be furnished the probation and the probation officer.

SO ORDERED

--------------------------------

(Place)

-------------------------------------

(Date)

Judge ___________________

Or other appropriate court

VIII. ISSUANCE OF SEARCH WARRANTS

Rules of Court

Rule 126

Sec. 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.

1. Rule on Forum Shopping

A search warrant was quashed because the applicant had been guilty of forum shopping as the applicant sought the search warrant from a Manila Regional Trial Court after was denied by the courts of Pampanga. 268

The Rules of Court, however, requires only initiatory pleading to be accompanied with a certificate of nonforum shopping omitting any mention of 'applications' as in Supreme Court Circular No. 04-94. Hence, the absence of such certification will not result in the dismissal of the application for search warrant. 269

Rules of Court

Rule 126

Sec. 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;

2

68

2

69

Washington Distillers v. Court of Appeals, G. R. No. 118151, August 22, 1996, 260 SCRA 821. Savage v. Taypin, G. R. No. 134217, May 11, 2000.

(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.

Sec. 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.

Sec. 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.

B. Meaning of Probable Cause

Probable cause for a search is defined as such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. 270

3. Basis of Probable Cause; Personal Knowledge

This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay, 271in order to convince the judge, not the individual making the affidavit and seeking the issuance of the warrant of the existence of a probable cause. 272

1. Meaning of knowledge; test is liability for perjury

The following test was laid in determining whether the allegations in an application for search warrant or in supporting deposition, are based on personal knowledge or not —

The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the 2

2 2

Burgos, Sr. v. Chief of Staff, No. L-64261, December 26, 1984, 133 SCRA 815; Quintero v. National Bureau of Investigation, No. L-35149, June 23, 1988, 162 SCRA 483; Pendon v. Court of Appeals, G. R. No. 84873, November 16, 1990, 191 SCRA 429; Manalili v. Court of Appeals, G. R. No. 113447, October 9, 1997, 280 SCRA 400; People v. Montilla, G. R. No. 123872, January 30, 1998, 285 SCRA 703. 71 Prudente v. Dayrit, G. R. No. 82870, December 14, 1989, 180 SCRA 69. 72 Alvarez v. Court of First Instance of Tayabas 64 Phil. 33 [1937]; Burgos, Sr. v. Chief of Staff, supra, note 269; 20th Century Fox Film Corporation v. Court of Appeals, Nos. L-76649-51, August 19, 1988, 164 SCRA 655; Silva v. Regional Trial Court of Negros Oriental, G. R. No. 81756, October 21, 1991, 203 SCRA 140. 70

personal knowledge of the applicant for search warrant, and/or his/her witnesses, not of the facts merely reported by a person whom one considers to be reliable. 273

2. Insufficiency of Affidavits

Mere affidavits of the complainant and his/her witnesses are not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his/her declarations are false. 274

Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. The facts recited in an affidavit supporting the application for a search warrant must be stated with sufficient definiteness, so that, if they are false, perjury may be assigned on the affiant. Hence, affidavits which go no further than to allege conclusions of law, or of fact, are insufficient. 275

Equally insufficient as a basis for the determination of probable cause is a statement contained in a joint affidavit 'that the evidence gathered and collated by our unit clearly shows that the premises abovementioned and the articles and things above-prescribed were used and are continuously being used for subversive activities in conspiracy with and to promote the objective of, illegal organizations such as the Light-A-Fire Movement, Movement for Free Philippines, and April 6 Movement.'

3. Prudente v. The Hon. Executive Judge A.M. Dayrit

In his/her application for search warrant, P/Major Alladin Dimagmaliw stated that 'he has been informed' that Nemesio Prudente 'has in his control and possession' the firearms and explosives described therein, and that he 'has verified the report and found it to be a fact.' On the other hand, in his supporting deposition, P/Lt. Florencio C. Angeles declared that, as a result of their continuous surveillance for several days, they gathered informations from verified sources that the holders of the said firearms and explosives are not licensed to possess them. In other words, the applicant and his witness had no personal knowledge of the facts and circumstances which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.

While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated that he verified the information he had earlier received that petitioner had in his possession and custody the firearms and explosives described in the application, and that he found it to be a fact, yet there is nothing in the record to show or indicate how and when said applicant verified the earlier information acquired by him as to justify his conclusion that he found such information to be a fact. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-á-vis the said applicant.

What the records show is the deposition of witness, P/Lt. Angeles, as the only support to P/Major Dimagmaliw’s application, and the said deposition is based on hearsay. For it avers that they (presumably, 2

73

2

74

2

Alvarez v. Court of First Instance, supra, note 272. Mata v. Bayona, No. L-50720, March 26, 1984, 128 SCRA 388 75 Quintero v. National Bureau of Investigation, supra, note 270; Burgos v. Chief of Staff, supra, note 270.

the police authorities) had conducted continuous surveillance for several days of the suspected premises and, as a result thereof, they 'gathered information from verified sources' that the holders of the subject firearms and explosives are not licensed to possess them.

Evidently, the allegations contained in the application of P/Major Alladin Dimagmaliw and the declaration of P/Lt Florencio C. Angeles in his deposition were insufficient basis for the issuance of a valid search warrant. As held in the Prudente case:

The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. 276

4. Factors that may be considered in determination of probable cause: time of application in relation to alleged offense considered in determination of probable cause

The Supreme Court observed:

It has likewise been observed that the offenses alleged took place from 1961 to 1964, and the application for search warrant was made on October 27, 1965. The time of the application is so far remote in time as to make the probable cause of doubtful veracity and the warrant vitally defective. Thus, Mr. Joseph Varon, an eminent authority on Searches, Seizures and Immunities, has this to say on this point: subject, the following general rules are said to apply to affidavits for search warrants:

(1) x x x

(2) Such statement as to the time of the alleged offense must be clear and definite and must not be too remote from the time of the making of the affidavit and issuance of the search warrant.

(3) There is no rigid rule for determining whether the stated time of observation of the offense is too remote from the time when the affidavit is made or the search warrant issued, but, generally speaking, a lapse of time of less than three weeks will be held not to invalidate the search warrant, while a lapse of four weeks will be held to be so.

A good and practical rule of thumb to measure the nearness of time given in the affidavit as to the date of the alleged offense, and the time of making the affidavit is thus expressed: "The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause".277 (Italics ours.)

The Supreme Court observed that had the respondent judge been cautious in issuing the questioned 2

76

2

77

Prudente v. Dayrit, supra, note 271. Asian Surety and Insurance Co. v. Herrera, No. L-25232, December 20, 1973, 54 SCRA 312.

search warrants he would have wondered, and therefor asked the affiant why the said incident was reported only on May 31, 1972 when he allegedly witnessed it on May 29, 1972. 278

5. The Need of Competent Proof of Particular Acts or Specific Omissions

The Supreme Court in the celebrated case of Stonehill v. Diokno pointed to the need of competent proof of particular acts or specific omissions in the ascertainment of probable cause:

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision, and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical persons therein named had committed a 'violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code.' In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause for the same presuppose the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be a legal heresy, of the highest order, to convict anybody of a 'violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code.' — as alleged in the aforementioned applications — without reference to any determinate provision of said laws or codes. 279

6. Probable Cause to be Determined only by Judge

A notable innovation in this guarantee is found in the Constitution in that it specifically provides that the probable cause upon which a warrant of arrest may be issued, must be determined by the judge after examination under oath, etc., of the complainant and the witnesses he may produce. This requirement — 'to be determined by the judge' — is not found in the Fourth Amendment of the U.S. Constitution, in the Philippine Bill or in the Jones Act, all of which do not specify who will determine the existence of a probable cause. Hence, under their provisions, any public officer may be authorized by the Legislature to make such determination, and thereafter issue the warrant of arrest. Under the express terms of the Constitution, it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in administrative proceedings. And, if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt. 280 2

78

2

79

2

Quintero v. National Bureau of Investigation, supra, note 270. Stonehill v. Diokno, No. L-19550, June 19, 1967, 20 SCRA 383; La Chemise Lacoste, S. A. v. Fernandez, No. L63796-7, May 21, 1984, 129 SCRA 373. 80 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9 SCRA 27.

7. Manner of examination

In determining the existence of probable cause, it is required that: 1) the judge must examine the witnesses personally; 2) the examination must be under oath; and 3) the examination must be reduced to writing in the form of searching questions and answers. 281These requirements are provided under Section 5, Rule 126 of the Rules of Court. It has been ruled that the existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the examination; 282however, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. 283

8. Examination is heard ex-parte and may be done in chambers but action must be expedited

An application for a search warrant is heard ex-parte. It is neither a trial nor a part of the trial. 284The examination or investigation which must be under oath may not be in public. It may be even held in the secrecy of the chambers. It must be under oath and must be in writing. 285Action on these applications must, be expedited for time is of the essence. Great reliance has to be accorded by the judge to the testimonies under oath of the complainant and the witnesses. 286The examination or investigation must not, however, be merely routinary but one that is thorough and elicit the required information. 287

The searching questions propounded to the applicants of the search warrant and his/her witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers establish a reasonable ground to believe the commission of a specific offense and that the applicant is one authorized by law, and said answers particularly describe with certainty the place to be searched and the persons or things to be seized. The examination or investigation which must be under oath may not be in public. It may be even be held in the secrecy of his/her chambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough and elicit the required information. To repeat, it must be under oath and must be in writing. 288

9. The need for searching questions and answers by the judge

More emphatic and detailed is the implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the judge before issuing the warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing and attach them to the record in addition to any affidavits presented to him. 289

The examination must be probing and exhaustive, not merely routinary or pro forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavits but must take his/her own inquiry on the intent and justification of the application. 290 2

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Marinas v. Siochi, Nos. L-25707 and 25753-4, May 14, 1981,104 SCRA 423; Ponsica v. Ignalaga, G. R. No. 72301, July 31, 1987, 152 SCRA 647. 82 Luna v. Plaza, G. R. No. L-27511, November 29, 1968, 26 SCRA 310. 83 Pendon v. Court of Appeals, G. R. No. 84873, November 16, 1990, 191 SCRA 429. 84 La Chemise Lacoste, S. A. v. Fernandez, supra, note, 279. 85 Mata v. Bayona, supra, note 274. 86 La Chemise Lacoste v. Fernandez, supra, note 278. 87 Mata v. Bayona, supra, note 274. 88 Mata v. Bayona, supra, note 274. 89 Mata v. Bayona, supra, note 274. 90 Roan v. Gonzales, L-71410, November 25, 1986, 145 SCRA 686. 81

Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant. 291

Personal examination by the judge of the complainant and his/her witnesses is necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Rule 126, Sec. 4 of the Rules of Court, both of which prohibit the issuance of warrants except 'upon probable cause.' The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. 292

10. Requisite of particular description of things to be seized

The description 'is required to be specific only in so far as the circumstances will ordinarily allow' and 'where by the nature of the goods to be seized their descriptions must rather be general, as this would mean that no warrant would issue.' 293

Thus, the description 'fraudulent books, invoices and records' was found sufficient. 294

So also was the description 'books, documents, receipts, lists, chits and other papers used by him in connection with his/her activities as moneylender, charging a usurious rate of interest, in violation of the law." 295Justifying the sufficiency of the later description, the Court said:

Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did. 296

It was, however, held in a much later case that search warrants describing the effects to be seized as follows:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and related profit and loss statements.

thus authorizing the seizure of books of accounts and records 'showing all the business transactions' of 2

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Nolasco v. Paño, G. R. No. 69803, October 8, 1985, 139 SCRA 132; Quintero v. NBI, supra, note 270; Silva v. Regional Trial Court of Negros Oriental, supra, note 272. 92 Bache v. Ruiz, No. L-32409, February 27, 1971, 37 SCRA 823. 93 People v. Rubio, 57 Phil. 384 [1932]. 94 People v. Rubio, supra, 293. 95 Alvarez v. Court of First Instance of Tayabas, supra, 272. 96 Alvarez v. CFI, supra, note 272. 91

certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit command of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. 297

11. Tests to Determine Particularity

A search warrant may be said to particularly describe the things to be seized:

(1) When the description therein is as specific as the circumstances will ordinarily allow; 298or

(2) When the description expresses a conclusion of fact - not of law by which the warrant officer may be guided in making the search and seizure; 299or

(3) When the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. 300

Thus, if the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communication, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant. 301

12. Description of place to be seized

It does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally determined by the judge, it is essential, too, that it particularly describes the place to be searched, the manifest intention being that the search be confined strictly to the place also described. 302

Where the affidavit for the search warrant and the search warrant itself described the building to be searched as 'the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands,' this is a sufficient designation of the premises to be searched. It is the prevailing rule that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. 303The police officers were accordingly authorized to break down the door and enter the premises of the building occupied by the so-called Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged in a prohibited game, and to confiscate the evidence of the 2

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Stonehill v. Diokno, supra, note 279. People v. Rubio, supra, note 293. 99 Ibid., dissent of J. Abad Santos. 00 Rules of Court, Rule 126, Sec. 2. 01 Bache v. Ruiz, supra, note 292; Columbia Pictures v. Court of Appeals, G. R. No. 111267, September 20, 1996, 262 SCRA 219. 02 People v. Court of Appeals, G. R. No. 126379, June 26, 1998, 291 SCRA 400. 03 Steele vs. U.S. [1925], U.S. Supreme Court Advance Opinions, 1924-1925; 69 Law. ed., 757.

commission of the crime. It has been held that an officer making an arrest may take from the person arrested any money or property found upon his/her person, which was used in the commission of the crime or was the fruit of the crime, or which may furnish the person arrested with the means of committing violence or of escaping, or which may be used as evidence on the trial of the case, but not otherwise. 304

13. Determination of Whether Search Warrant Describes Premises with Particularity

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held 'that the executing officer’s prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit. And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched.' 305

The principle does not apply where there is no ambiguity on the face of the search warrant as to the description of the place to be searched. The place to be searched as set out in the warrant cannot be amplified or modified by the officer’s own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. x x x The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. 306

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People v. Veloso, 48 Phil. 169 [1925]. Burgos v. Chief of Staff, Armed Forces of the Philippines, supra, note 272. 06 People v. Court of Appeals, supra, note 302.

IX PROVISIONAL REMEDIES Rules of Court Rule 127 Provisional Remedies In Criminal Cases Sec. 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. Sec. 2. Attachment.- When the civil actions 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 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.

PART TWO

PROCEDURE IN SANDIGANBAYAN

I. STAGES IN CRIMINAL CASES

1. Filing of the Information after preliminary investigation conducted by the Office of the Ombudsman.

2. Judicial determination of probable cause to be determined by the Justices concerned.

2.1 If the Court finds the existence of probable cause, the Court shall cause the issuance of Warrant of Arrest and Hold-departure Order against the accused, the first through the Chairman only, the second by Division – that is three (3) Justices signing the order;

2.2 In some cases, the Court directs the Office of the Clerk of Court to schedule a hearing on the Information notifying only the prosecution (anent said hearing the Court may call the attention of the prosecution and to direct it to file a necessary pleading why the case should not be dismissed for lack of jurisdiction, why the information should not be quashed, why the accused should not be granted bail if the Office of the Ombudsman recommends no bail but the offense as seen by the Court is bailable);

2.3 Possible Motion to Amend Information filed by the prosecution.

3. Arrest/Voluntary Surrender of the accused

4. Posting of Bail

4.1 Possible motion for reinvestigation filed by accused. (alleging that accused was deprived of his/her right to file a motion for reconsideration before the Office of the Ombudsman on the latter’s resolution/decision as mandated by Section 27 of the Ombudsman Act of 1989).

4.2 Possible Motion to Withdraw Information/To Quash Information/Motion to Dismiss even if Motion for Re-Investigation is denied and/or granted.

5. Arraignment and plea

5.1 Possible filing of a Motion to Suspend accused Pendente Lite by the prosecution.

5.2 Possible Motion to Travel Abroad filed by the accused.

5.2.1 The court will require certain conditions in the event said motion is granted such as posting of additional travel cash bond, conformity of the bondsmen if any, etc.

5.2.2 In some cases where accused files a Motion to Travel Abroad before his/her arraignment, the Court, during the hearing on the said Motion shall conduct/require a conditional arraignment of the accused if the case is pending re-investigation so that in the event the accused fails/refuses to return in the country, the court may opt to conduct a trial in absentia.

5.2.3 Possible Motion for Consolidation, if applicable.

6. Pre-trial

6.1 Submission of Joint stipulation of facts.

6.2 Issuance of Pre-Trial Inquest (Sec. 6 Rule VI)

6.3 Pre-Trial Order reciting the actions and/or proceedings taken and the alteration of presentation of evidence if warranted.

7. Trial

7.1 Prosecution presents evidence and rests case.

7.2 Possible filing of Demurrer to Evidence/Motion to Dismiss.

7.3 Presentation of defense evidence if Demurrer to Evidence/Motion to Dismiss is denied.

8. Judgment (Decision)

9. New Trial or Reconsideration

10. Appeal – Petition for Review for Certiorari under Rule 45

2. CIVIL CASES

A. Cases Covered

1. Those filed under Exec. Order Nos. 1, 2, 14 and 14-A promulgated by President Corazon Aquino referring to the recovery of ill-gotten wealth of former President Ferdinand Marcos/members of his family/close relatives/subordinated/cronies/agents/ dummies – by the PCGG.

2. Hearing on the validity of Writ of Sequestration or freeze or Hold Order issued by the PCGG;

B. Stages in Civil Cases

1. Pre-trial after last pleading is filed

2. Trial

2.1 Plaintiff presents evidence and rests case

2.2 Defendant presents evidence and rests case

3. Memoranda if requested by the parties

4. Judgment

5. Motion for Reconsideration/New Trial by any party

6. Appeal

3. PROCEDURE ON APPEALED CASES

(Anti-Graft cases decided by the RTC involving minor officials) 307

A. Mode of Appeal

Petition For Review (not Notice Of Appeal) pursuant to Sec. 4 (b) Pres. Decree No. 1606 and Sec. 39 Batas Blg. 129.

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Rep. Act No. 8249, Sec. 4

B.

Stages in Appeals

1. Transmittal of the entire record, exhibits, stenographic notes, etc. by the court a quo to the Docket and Records Section;

2. Case shall be entered into the Sandiganbayan Docket and raffled off to the proper Division.

3. The Court after ascertaining the completeness of all the evidence, oral and documentary, attached to the record, shall require the appellant to file with the court, within forty-five (45) days from receipt of said notice seven (7) copies of his/her legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. 308

4. Within forty-five (45) days from receipt of the appellant’s brief, the appellee shall file with the court seven (7) copies of his/her brief with the court which shall be accompanied by proof of service of two (2) copies thereof upon the appellant. 309

4.1 Extension of Time for filing 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. 310

4.2 Within twenty (20) days from receipt of the appellee’s brief, the appellant may file a reply brief answering points in the appellees brief not covered in his/her main brief. 311

4.3 Possible filing of a Motion for New Trial.

5. Judgment

5.1 Possible Motion for Reconsideration

6. Appeal to the Supreme Court, through Petition for Review on certiorari under Rule 45.

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Rules of Court, Rule 44, Sec. 7. Ibid, Sec. 8. 10 Ibid., Sec. 5. 11 Rules of Court, Rule 44, Sec. 9.