Dean Riano Transcript

Dean Riano’s Lecture 2014

REMEDIAL LAW TRANSCRIPT 1 How does Remedial Law operate? When a right has been violated. The very first part of Civil Procedure is to file a complaint because your right is violated.  Right of action – the right to file a complaint - It arises when your right has been violated. - Remedial, not substantive law. - You have a right of action because you have a cause of action. Do you need a cause of action in all civil actions? No. A cause of action is mandatory only in ordinary civil actions. Start with Rule 2 where the real meat starts, Remedial law starts. Not with Rule 1 because it is only introductory. Cause of Action is in Sec. 2. It involves a right that is violated. Example. I borrowed P1M from you and I promise to pay you on April 2014. But when you demanded I didn’t pay you. I violated your right as a creditor to be paid. You now have a cause of action. Can go to court. Civ pro now starts to operate. Same example. I promised to pay you my debt on April 2014 and on that day until now I didn’t pay. You went to court to sue me. You have no cause of action as there was no demand. Art. 1169, NCC, no delay if no demand. All substantive laws are related to remedial law. You do not need a violation of a right in some special civil actions. But you need a violation of a right in ordinary civil actions. Example. Warehouseman. A claims to be the owner. B also claims to be the owner. W is now confronted by 2 conflicting claim of ownerships. If W deliver the goods to A, B would sue W. W is not a court. So W goes to court and throw the problem to the court for it to decide. Interpleader. Someone did not violate W’s right. W went to court not because his right is violated but rather to settle the confusion of the claim of ownership. Expropriation. I didn’t violate the right of the government. It is the government taking my property. ROC is very clear. Only in ordinary action where cause of action is mandatory.

Filing of the Complaint: Prepare the Complaint: Rule 2,4,3,6,7,8 Rule 1. Jurisdiction over subject matter is not procedural. Not a part of rules of court. It is a substantive law. What are the EFFECTS OF THE FILING OF COMPLAINT on jurisdiction over the parties? 1. The court acquires jurisdiction over the plaintiff not the defendant.

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Example, an Australian resident filed a case for accounting plus damages through his lawyers. Defendant filed an MTD on the ground for lack of jurisdiction as the plaintiff did not personally come to the Phil. Answer: 1.1. MTD is denied. 1.2. Rule. Personal filing and coming to the Phil is not a requisite for jurisdiction. When the complaint is filed, the court acquires jurisdiction over the person of the plaintiff. 2. On the issue of prescription in your civil code. The cause of action will no longer prescribe because the complaint is filed in court. Art. 1155, NCC. The prescription of actions is interrupted when they are filed before the court. Rule 14 Summons When the complaint is filed and lawful feels are paid. Clerk of court issues the summons not the court. Summons tell the defendant to appear and file his answer. Even if the summons tell you to file an answer, the Answer is not the first option of the defendant. Defendant may read the complaint and say that there are allegations that are hazy, thus it is possible to file a motion for bill of particulars, Rule 12. Rule 12 Bill of Particulars To clarify the allegations of the complaint. Needs detail. You don’t file this to ask for evidence but just to ask for details in the complaint. The purpose of this is to enable you to prepare a responsive pleading. Rule 16 Motion to Dismiss Now, it is possible that since the complaint is now clarified that the defects thereof are also clear, thus you can file a motion to dismiss. Rule 10 Amendment If you were the plaintiff and there was a motion to dismiss, what is your possible move? Amend your complaint. MTD is not a pleading, it is only a motion. So, you can still amend the pleading as a matter of right. But if there is already an answer, it is no longer a matter of right, so you need a leave of court. Rule 17 Dismissal of Actions A plaintiff can still dismiss his own complaint. Rule 6 Answer A responsive pleading to the complaint. Possibilities:  No answer: Sec. 3, Rule 9. Declare in default.

Dean Riano’s Lecture 2014

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An answer but there are no specific denials: effect is all are admissions: NO ISSUE AT ALL: Judgment on the Pleadings, Rule 34. An answer and the only issue NOT A GENUINE ISSUE (ex. He admitted he was negligent but denied liability on the amount of damages and not the existence of damages): Summary Judgment, Rule 35.

Can file a claim against plaintiff: An Answer with Counterclaim. - It actually involves 2 pleadings: an answer and a counterclaim - The kinds of counterclaim:  Compulsory  Permissive Counterclaim – D v. P Cross-claim- D1 v. D2 Third Party Claim – D v. 3rdy. Needs a leave of court. A 3rdy is not yet a party to the case so you need the permission of the court to include him. Intervention – to protect my legal right. Needs leave of court. Rule 19. Reply – plaintiff wants to reply to the answer. Not mandatory. Even without this, all allegations in the answer are deemed denied.

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Rule 18 Pre-Trial can even use the modes of discovery  if no amicable settlement, go to Trial

Rule 30 Trial Normally, plaintiff presents the evidence first. But it is possible to have reverse trial in civil case.  Can file demurrer to evidence, Rule 33. It is actually a motion to dismiss but with another name in order to avoid confusion with Rule 16. A motion to dismiss is filed even before an Answer is served but a Demurrer to evidence is filed after the plaintiff rests his case, meaning he is done with the presentation of his evidence. Rule 33 Demurrer to Evidence That plaintiff has not proven anything. He is not entitled to the relief sought for. Rule 36 Judgment Remedies against the Judgment. Post-Judgment Remedies. Remedies of a Losing party.

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Our Rules do not logically arrange these topics. So let’s rearrange these. BEFORE JUDGMENT BECOMES EXECUTORY (within the period for appeal)  Motion for Reconsideration, R37  Motion for New Trial, R37  Appeal- R 40, 41, 42, 43, 45 AFTER JUDGMENT BECOMES EXECUTORY (after the period of appeal has lapsed)  Annulment of Judgment- R47  Petition for Relief- R38  Certiorari – R65 Rule 39 Execution and Satisfaction of Judgments PROVISIONAL REMEDIES Temporary reliefs during the pendency of action and before the judgment is executed. SPECIAL CIVIL ACTIONS Certiorari R. 65 Now to the nitty gritty... JURISDICTION -The court has jurisdiction, not the judge. - Jurisdiction is not the court. It refers to the authority. A power to hear, try and decide the case- the traditional view. - Echegaray v. SOJ, 1999: another element to jurisdiction: includes the power to execute the decisions. - in CivPro, there are several aspects of jurisdictions: > subject matter – a substantive law. It is found now in Judiciary Reorganization Act of 1980 (BP129), as amended by RA 7691. It is conferred by law. It is determined by the allegations of the complaint. > parties: plaintiff and defendant. Procedural. Implied in Summons > issues- Procedural. Implied in Rule 10. > res – Procedural. Implied also in Summons - in CrimPro, > subject matter: offense charged > person of the accused > territory - equivalent to venue in civil case. But in civil case, venue is just purely venue. But in criminal case, venue is jurisdiction. In the civil case, venue is not jurisdiction. But in the criminal case, venue is jurisdiction. MTD in Civil Case –ground: improper venue MTQ in Crim Case – ground: lack of jurisdiction Consequences of the principle that jurisdiction of the subject matter is conferred by law: - Jurisdiction over subject matter cannot be waived. - Cannot be the subject of the stipulation between the parties

Dean Riano’s Lecture 2014

Ex. Suppose the parties and the court believed that the case is within the jurisdiction of the RTC even though technically it should have been under jurisdiction of the MTC, will the exercise of the jurisdiction by the RTC because of good faith validate the judgment of the court that was subsequently rendered? No! Because the judgment was rendered without the jurisdiction. Jurisdiction cannot be conferred by good faith or honest belief. Good faith and honest belief are not laws and jurisdiction is conferred by law. But if you already know that the court has no jurisdiction but you still participated in the trial despite of such knowledge. And when you were about to lose the case, only then you questioned the jurisdiction, you may be stopped in questioning the jurisdiction. This will only come in the following circumstances: - Previous knowledge that the court has no jurisdiction - Did not question the jurisdiction - Actively and fully participated in the proceedings - When about to lose, only then that you questioned the jurisdiction Tijam v. Sibonghanoy: you are not allowed to gamble with the results of the litigation. What is the implication of the rule that jurisdiction is determined by the allegations of the complaint? - Do not look at the title of the case given by the plaintiff. Look instead at the material allegations of the complaint. - Barazona v. RTC of Baguio. - if demand to vacate and pay= unlawful detainer - Vacate or pay= collection of sum of money - Vacate or comply with the conditions of the lease = not unlawful detainer but an action for specific performance - Vacate and comply with the conditions of the lease = unlawful detainer SPECIFICS of JURISDICTION Jurisdiction of RTC and MTC Sec. 33 of BP 129, as amended "Sec. 33.Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. — Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: cdt "(1)Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses,

and costs shall be included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions; "(2)Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession; and "(3)Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots." REPUBLIC ACT NO. 7691 [1994]) Sec. 19 of BP 129, as amended "Sec. 19.Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction. "(1)In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; "(2)In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000,00) or for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; "(3)In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds One hundred thousand pesos (P100,000.00) or, in Metro Manila, where such demand or claim exceeds Two hundred thousand pesos (P200,000.00); "(4)In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Two Hundred thousand pesos (P200,000.00);

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Dean Riano’s Lecture 2014

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"(5)In all actions involving the contract of marriage and marital relations;

as there is an RTC judge present, the MTC cannot handle that case.

"(6)In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions;

Normally which court has jurisdiction over land registration or cadastral cases? RTC. MTC if delegated by SC. Delegated jurisdiction. Sec. 34 BP129, as amended.

"(7)In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and

Which court has an exclusive original jurisdiction over Forcible Entry or Unlawful Detainer? MTC

"(8)In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds One hundred thousand pesos (P100,000.00) or, in such other cases in Metro Manila, where the demand exclusive of the abovementioned items exceeds Two Hundred thousand pesos (P200,000.00)." ||| (Expanding the Jurisdiction of the MeTCs, MTCs and MCTCs, REPUBLIC ACT NO. 7691 [1994]) RA 7691, Section 5.After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the abovementioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity of this Act to Four hundred thousand pesos (P400,000.00).

 Look at the jurisdictional amount Divide the country in two parts: Metro Manila-P400K Outside Metro Manila –P300K Beyond these amount- RTC Exactly these amount – MTC But in computing those amount, there are numbers which are not supposed to include: damages of whatever kind, interests that have not yet accrued, attorney’s fees, litigation expenses and costs. (DIALiC)

If an unlawful detainer case was filed in MTC and defendant invoked the defense of ownership, will that defense divest the jurisdiction? No. The court can determine (provisionally) the ownership but only to determine the extent of possession. Can the MTC handle a petition for a writ of Amparo? Writ of Habeas Data? Never. Though they are special proceedings February 19, 2013: SC affirmed na they are spec pro. De Lima v. Magtanggol Magdulap. The most controversial aspect is the real action. They continued to be debated because many of the judges are the products of the old school concept of jurisdiction. “Title to, possession of or any interest in real property.” Sec. 33, BP129 #3. "(3)Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots." cd i||| (REPUBLIC ACT NO. 7691 [1994]) Sec. 19, #2. "(2)In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000,00) or for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;||| (REPUBLIC ACT NO. 7691 [1994])

Only the main claim!

So real property: assessed value, except Unlawful detainer, forcible entry.

The rule that damages must not be included in determining jurisdiction applies only when damages is not the main claim.

TRANSCRIPT 2 c.f. Valeriano Poncia v. Sps Lomocso 540 scra 1

Since the MTC can handle probate cases depending on the gross value of the estate, that is a special proceeding, is there any other spec pro which an MTC can handle? Yes. Special Jurisdiction of MTC – Special proceeding of writ of habeas corpus- not a regular jurisdiction of MTC. Sec. 55 BP129, as amended. Only when the RTC judges are all absent. As long

Accion publiciana Accion reivindicatoria Partition of real property Foreclosure of REM Cancellation of title to real property Reconveyance of title to real property Quieting of title

Dean Riano’s Lecture 2014

Some of those real actions are also actions incapable of pecuniary estimation which are cognizable by RTC. But if the actions are incapable of pecuniary estimation and at the same time a real action, look at the assessed value. Cancellation of title to real property, involves an interest in real property, thus a real action. But the issue is, do you have a right to cancel the real property – incapable of pecuniary estimation. So, must look at the assessed value. Look then at the material allegations of the complaint to determine the real and primary purpose of the action. Am I going to use the doctrine on incapable of pecuniary estimation? Or am I going to use the doctrine on real actions? So if the topic is specific performance, do not immediately answer incapable of pecuniary estimation, thus RTC. Look at the way the problem has been phrased! The nature of the cause of action and jurisdiction is again determined by the material allegations of the complaint! Example: 1. I offered to sell a parcel of land to you. You accepted it. Price is P10M. You paid me. I told you, you can now occupy the l and. So you built a mansion on the land. But the sale is oral, no written document. Is the sale valid? Yes. Art. 1319. Meeting of the minds: offer is certain, acceptance is absolute. Art.1475 So the buyer went to the RD to register the land. But the RD refused to register without the deed of absolute sale. Now the seller won’t execute the deed. So the buyer would file a case an action to compel the seller a notarized deed of sale. An action for specific performance. Are you going to look at the assessed value of the land or are you going to the RTC because it is incapable of pecuniary estimation? RTC! Your purpose is only to get a notarized deed of sale and not to acquire ownership. You already are the owner, the land was already delivered to you. You are not filing an action for specific performance to acquire ownership, instead it was to get the notarized deed of sale. That document did not give you ownership. There was already a delivery. It is the delivery of the subject matter of the sale that brings ownership. 2.

I offered to sell a parcel of land to you. You accepted it. You paid me. But I told you, you cannot occupy the land until after 6 months. Hence there was payment, meeting of the minds but there is no delivery yet. So the buyer is not yet the owner of the land. Payment and sale are not modes of acquiring ownership. It is the delivery as a consequence to the sale that makes one an owner. So after 6 months still I did not give to you the land. So you filed an action for specific performance to compel me to execute a notarized deed of sale. The purpose here is to acquire ownership because there was yet no delivery. So the execution of notarized deed of sale is equivalent to delivery. Art. 1498, NCC. So this is a real action; the purpose of acquiring ownership.

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Look at the facts of the case! Specific performance is not dekahon! Accion publiciana is to be treated differently from UD/FE. Although all of them involved possession of real property. The only problem is UD/FE are actions cognizable by MTC always. But AP is cognizable either by MTC or RTC depending upon the assessed value and the location of the property. When is an action to recover possession real property an accion publiciana. Short story: an UD/FE are actions that have to be filed within 1 year from the accrual of action. If you were dislodged of the possession by force, intimidation, stealth, strategy, - FE One year from last demand to vacate – UD If lagpas one year- AP na  a delayed action for UD/FE AP is not a summary proceeding. It is an ordinary civil action. FE/UD falls under summary procedure. An instance when an action to recover real property is an accion publiciana aside from the fact that is filed more than one year from the accrual of the cause of action is when the complaint does not allege how the defendant took possession of the property; consider it as an accion publiciana. If the allegations of the complaint state clearly the occupancy by the defendant was legal at the beginning but because he did not pay the rentals or violated the conditions and demand to vacate was made and he did not vacate, unlawful detainer. The possession was legal but became illegal later. If he entered the property by force, intimidation, it is forcible entry. The possession is illegal from the beginning. Suppose there are no allegations that would point as to whether it is forcible entry or unlawful detainer, and you are recovering possession of real property, that is considered as accion publiciana. The issue is only possession. If the ownership is the issue; You are recovering possession because you are the owner, that is already accion reivindicatoria. Look at the assessed value. Removal of the cloud on the title, Quieting of title . They are real actions and at the same time incapable of pecuniary estimation. Look at the assessed value. Quinagoran v. CA- accion publiciana August 24, 2007. The doctrine on which the RTC anchored its denial of petitioner's Motion to Dismiss, as affirmed by the CA — that all cases of recovery of possession or accion publiciana lies with the regional trial courts regardless of the value of the property — no longer holds true. As things now stand, a distinction must be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and P50,000.00, if within. ||| (Quinagoran v. Court of Appeals, G.R. No. 155179, August 24, 2007) Heirs Valeriano case December 12, 2007 In a number of cases, we have held that actions for reconveyance of or for cancellation of title to or to quiet

Dean Riano’s Lecture 2014

title over real property are actions that fall under the classification of cases that involve "title to, or possession of, real property, or any interest therein." The original text of Section 19 (2) of B.P. 129 as well as its forerunner, Section 44 (b) of R.A. 296, 47 as amended, gave the RTCs (formerly courts of first instance) exclusive original jurisdiction "[i]n all civil actions which involve the title to, or possession of, real property, or any interest therein,except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, [MTCs], and Municipal Circuit Trial Courts (conferred upon the city and municipal courts under R.A. 296, as amended)." Thus, under the old law, there was no substantial effect on jurisdiction whether a case is one, the subject matter of which was incapable of pecuniary estimation, under Section 19 (1) of B.P. 129 or one involving title to property under Section 19 (2). The distinction between the two classes became crucial with the amendment introduced by R.A. No. 7691 48 in 1994 which expanded the exclusive original jurisdiction of the first level courts to include "all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs." Thus, under the present law, original jurisdiction over cases the subject matter of which involves "title to, possession of, real property or any interest therein" under Section 19 (2) of B.P. 129is divided between the first and second level courts, with the assessed value of the real property involved as the benchmark. This amendment was introduced to "unclog the overloaded dockets of the RTCs which would result in the speedier administration of justice." ||| (Heirs of Concha, Sr. v. Spouses Lumocso, G.R. No. 158121, December 12, 2007) Real action- involves title to, possession of or any interest to real property Specific performance (incapable of pecuniary estimation) (main action) AND P100,000 damages (MTC) (incidental)= RTC. Specific performance OR P100,000 damages = MTC, Look at the amount of the damage, because it is in the alternative. The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which thedemand arose; that is what the law says in unmistakable terms. The alternative prayer for specific performance is also of the same value, for, as said above, the alternative prayers would not have been made in the complaint if one was more valuable than the other; hence, the specific performancealternatively prayed for, is capable of pecuniary estimation at P644.31 (sec. 88, par. 2, Rep. Act No. 296).

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In view of the foregoing, it is declared that the respondent Judge of the Court of First Instance of Rizal is without jurisdiction to try the case referred to, and he is ordered to stop further proceedings by dismissing the case. ||| (Cruz v. Tan, G.R. No. L-3448, November 27, 1950) Action for interpleader: if the object of the interpleader is personal property or movable property like goods, look at the value of the property. If you are in Metro Manila, P400,000. Outside it is P300,000. That is if personal property If the object of the interpleader is a real property, look at the assessed value because it is a real property, Manila P50,000. Outside, P20,000 If the object is a performance of the service, RTC, it is incapable of pecuniary estimation. Petition for declaratory relief- RTC, incapable of pecuniary estimation. RULE 63 Declaratory Relief and Similar Remedies SECTION 1. Who may file petition. — Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. (1a, R64) (As amended by Resolution of the Supreme Court, Feb. 17, 1998) ||| (Rules of Court [1997]) -

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An action for reformation of an instrument, quieting of title, removal of clouds, consolidation of ownership – RTC, incapable of pecuniary estimation. You are not filing an action to reform a contract. It is to reform an INSTRUMENT! If the contract itself is defective, you just enter a new contract. It is not defined as a document nor an instrument. It is the meeting of the mind.

In consolidation of ownership, do not look at the assessed value because you file it not to acquire ownership as you are already the owner but instead you file it so that your consolidation of ownership will be registered. There can be no registration without a court order. Local Sales: two kinds of redemption: Legal redemption, Conventional redemption. Let’s say I sold to you a house and lot subject to redemption. Within the period for redemption I was not able to redeem. What happens? Consolidation of ownership upon the buyer. So the ownership is acquired by the buyer by operation of law

Dean Riano’s Lecture 2014

by failure of the seller to redeem. But that consolidation of ownership needs a court order for it to be registered. Art. 1607, NCC. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. (n) - The failure to redeem already has the effect of consolidation of ownership. But it shall not be recorded in the Registry of Property without judicial order. Which court has jurisdiction over the judgments of COMELEC and COA? - SC. Rule 64. - There is NO MODE OF APPEAL! Be very careful on this. You don’t go to SC from the COMELEC or COA in order to appeal. SC has no jurisdiction over appellate procedures from COMELEC and COA. You go to the SC in a petition for certiorari under Rule 65 which is not a mode of appeal. It is an independent original special civil action. IT IS NOT AN APPEAL! It is a mode of Review. There are 2 modes of review: 1) Appeal 2.)Certiorari, Rule 65 Certiorari under Rule 64 is only directed to the COA and COMELEC. Rule 65 in Rule 64 is mestizo Rule 65. The pure and true Rule 65 is the certiorari in Rule 65. The certiorari in Rule 65 is to be filed within 60 days from notice of judgment or final order. But the Rule 65 in Rule 64 is to be filed in 30 days. Rule 65 in Rule 64 is only for COMELEC and COA. Rule 65 in Rule 65 is for all other tribunal, board or officer exercising judicial or quasi-judicial functions. Where can you file the Rule 65 petition in Rule 65? RTC, CA, Sandiganbayan, SC Rule 65 under Rule 64? Only SC Let’s go to Rule 65  the 3 special civil actions: Certiorari, Prohibition, Mandamus - Can be filed in any court except for Certiorari where the lowest court that it can be filed is RTC - When you file petition for certiorari under R65, you are not appealing. You are not talking about the merits of the case. You are concentrating on the fact that the lower tribunal has committed acts amounting to lack of jurisdiction. It acted without jurisdiction or with grave abuse of discretion or in excess of jurisdiction amounting to lack of jurisdiction. The issue is JURISDICTIONAL. The petition for certiorari Rule 65 might have its roots in the case below. But it is not about whether the court committed errors in the appreciation of the facts and evidence. But it is the grave abuse of discretion. When you file certiorari under Rule 65 is like filing a new action. - Ex. I filed a petition for certiorari in the CA against the grave abuse of discretion of the RTC. I lost in the CA. What is the remedy against the CA? Appeal. Because it is like filing a new case. Ang decision sa certiorari hindi mo cinecertiorari. Ang decision sa certiorari ina-appeal

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mo dahil ang petition ng certiorari ay para kang nag-file ng original na kaso na kapag natalo ka mag-aapeal ka.  - Ang mode of appeal ay ang Rule 45. Rule 65 hindi mode of appeal! - San mo fina-file ang Rule 45, SC lang. ;) - The filing of the petition for certiorari in CA does not have the effect of interrupting the course of the principal case in the RTC. The RTC judge has the obligation to proceed with the case in the RTC within 10 days from filing the petition for certiorari. To stop the proceedings below, you have to get a writ of preliminary injunction or a TRO. - SC has observed that whenever a counsel does not agree with the court the counsel always file a petition for certiorari against the court and this delays the proceedings below. Because if you file a case for petition for certiorari in the CA against the RTC, the old practice was that the RTC will not continue with the case on the ground of judicial courtesy that there is a pending certiorari against them. So it will stop the case below. Justice is delayed. That judicial courtesy is no longer allowed. Lower court should proceed with the case unless it is prevented from doing so through a writ of preliminary injunction or TRO. If the judge does not continue with the case and there is no injunction or TRO, he will be subjected to disciplinary action. - Sec. 7, Rule 65 is a five-star provision. SECTION 7. Expediting Proceedings; Injunctive Relief. — The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. -

||| (Amendments to Rules 41, 45, 58 and 65 of the Rules of Court, A.M. No. 07-7-12-SC [2007]) This is a potential question for an essay problem. This has far-reaching significance! Problem: suppose, D noticed a defect in the allegations. So D filed an MTD for failure to state a cause of action. Denied. D filed an MR. Alleging grave abuse of discretion, D filed R65 for certiorari before CA against RTC. P filed a motion to declare D in default for failure to file an answer within the period. RTC granted the default. Is the RTC wrong when it declared D in default? No. The filing of the petition for certiorari does not interrupt the period for filing the answer absent TRO or prelim injunction, thus default.

Dean Riano’s Lecture 2014

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How can you prevent the court from making the declaration of default? Ask for the issuance of TRO and writ of preliminary injunction. Where do you file expropriation proceeding under Rule 67? RTC. Always incapable of pecuniary estimation even if the object is a real property. The issue in this case is, does the government agency has the right to expropriate the property. The issue as to the right is incapable of pecuniary estimation. Where do you file for the foreclosure of the REM? Look at the assessed value. Rule 68. Where do you file the partition of real property under Rule 69? Look at the assessed value. A partition of real property involves an interest of real property and it requires determination of the assessed value. Where do you file Rule 70, forcible entry/unlawful detainer? MTC Where do you file a petition for indirect contempt? In the court which is the object of the contempt. But if the object is the MTC, you can file it either in RTC or MTC itself. Ang finafilan ng action is indirect contempt. Ang direct contempt walang action2x, right there and then you can be declared direct contempt. Ang indirect contempt may action pa yan. Pag inaway ka ng misis mo, at inuntok ka ng misis mo, anong court ang may jurisdiction? Wala, hospital ka muna! @.@ JURISDICTION OVER THE PARTIES -basically there are 2 parties: plaintiff and defendant How does the court acquire jurisdiction over the plaintiff? By filing complaint How does the court acquire jurisdiction over the defendant? By serving summons or voluntary submission When the issue is jurisdiction over the defendant, not all cases require jurisdiction over defendant. Why? Because there are some civil cases without defendant. And even if there is a named defendant, it is not a true defendant but only a nominal defendant. You only acquire jurisdiction over the defendant when it is a true defendant that is in an action in personam. Example. I filed a land registration case, cognizable by RTC (generally unless delegated to MTC). There is no defendant. The object of the action is the property. The res. Jurisdiction over the res. Land registration case is an action in rem. I filed a probate proceeding for allowance of the will. What is the object? The will. I am not filing it against a particular defendant. So no need of jurisdiction over defendant because there is no defendant. Probate proceeding is an action in rem. On the other hand, there are actions where there are named defendants but they are only nominal defendants because you cannot proceed with the case without naming the person. Ex. Elen and Pedro are couple. Pedro filed an action for annulment of marriage against Elen because of force and intimidation against the former. Is there a defendant named? Yes. Elen but only a nominal defendant. The action is directed against the relationship. The relationship involves the status as

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a married person. It is not an action in personam. But an action in rem. Pedro cannot file an action for annulment without mentioning that he is married so he must mention the person to whom he is married. When an action is in rem or quasi-in rem, jurisdiction over the defendant is not required. What is required is jurisdiction over the res. The res is the property or the status of the plaintiff. You only need a jurisdiction over the person of the defendant in an action in personam. It is in action in personam where there is a true defendant where you want him to be liable, to perform an act in your favour. An action to declare my filiation is an action in rem, it is about my status. But when I file an action against this lady to recognize me as her natural child, the action is directed to her for her to recognize me. It is not an action against the whole world dahil hindi ako anak ng mundo! Anak lang ako nya. Irecognize mo ako! That is an action in personam. But an action to declare mere filiation is an action in rem. Kung si armi ay nangutang sakin ng P1M at ayaw nyang magbayad and when I demanded money binatukan nya ako ng singkamas then I sue her for collection of sum of money. The court needs to acquire jurisdiction over her. That is an action in personam. Si Elen ay nagdadrive ng kotse na pakantakanta pa with feelings and closed her eyes. I crossed the street. She hit me but I survived and I want to sue her for damages. An action in personam. The court needs jurisdiction over her person. If X is renting my apartment and he does not pay the rentals and I want him to vacate the premises. I will file unlawful detainer. It is an action in personam. A recovery of property from the person possessing it is an action in personam (accion publiciana, unlawful detainer, forcible entry, replevin). Quasi in rem. No need jurisdiction over the person of the defendant but only over the res. Action for accounting. Attachment proceedings. Partition of real property. Foreclosure of REM. In personam, the court needs jurisdiction over the person. Action for a sum of money. Action for damages, UD/FE, accion publiciana, accion reivindicatoria. JURISDICTION OVER THE ISSUES How do you know the issues of the civil case? Look at the pleadings of the parties. The complaint as material allegations. If the material allegations are not specifically denied, no issues. They are deemed admissions. Rule 8, SECTION 11. Allegations Not Specifically Denied Deemed Admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9) An issue arises when the party specifically denies a material allegation. For example,

Dean Riano’s Lecture 2014

Allegations: 1. The complaint says that D borrowed P5M from P. D did not deny that particular allegation. There is an admission. So no more issue as to WON there is debt coz there’s no specific denial. There is no issue. 2.

That the debt is already due. There was no specific denial that the debt is due. So there is no issue as to whether the debt is already due.

3.

There was a demand of the duty to pay. There was no specific denial. The demand was not denied. It is admitted. Due date is not denied. It is admitted. Existence of the debt is admitted.

4.

Despite demand he did not pay, no it’s not true coz I paid. The issue is whether or not there was payment.

That is how an issue arises. Because if he admits that there was no payment despite demand, plaintiff may simply file a motion for judgment on the pleadings which presupposes that there is no issue at all. Summary judgment presupposes a non-genuine issue. Now, issues in the case can also arise because of the stipulation of the parties during the pre-trial. What do you mean when you say that the court has jurisdiction over the issues? That simply means that if the parties are quarrelling over P5M, the issue in the pleadings, the court has no jurisdiction to render judgment for P10M because that P10M is not the issue of the case. The issue is only P5M. When the issue on the case is only ownership as found in the pleadings, the court can only render judgment as to ownership but cannot render judgment as to possession where possession is not the issue of the case because ownership is not possession and possession is not ownership. They are different concepts. But even if a matter is not an issue in the pleading but that is tried in the case with the consent of the other party because there was no objection, that matter which is not an issue in the case is considered to have become an issue on the case as if found in the pleadings because they were tried with the consent of the parties. Rule 10, SECTION 5. Amendment to Conform to or Authorize Presentation of Evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)

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Illustration: I sued X for P5K. While I was presenting my evidence, it was shown that he owes me P7K. You are the counsel of the other party what is your move? Objection your honor, the P7K is irrelevant as the pleadings only talked about P5K. What will the court say? Sustain. The P7K is not in the pleadings. The evidence must prove up to the extent of P5K because that is in the pleadings. Now, suppose you do not object to the P7K, it is as if the pleadings were talking about P7K not P5K because you consented to it. So the court can render judgment on it na. If segurista ka, you can move to amend the pleadings, to conform to the evidence. But even if you do not amend it, it doesn’t matter na coz it is considered as part of the pleadings. This is an implied amendment of the pleadings. Failure to object. There was an action to collect a sum of money P500K. In the complaint, there was no allegation that he demanded payment before filing the action. There was no objection from the other side. During the trial, the plaintiff offered in evidence, Exhibit A- a written demand to pay. There was no objection from the other party. Question, is the court in error if it admits Exhibit A? No. It was tried with the consent of the other party. There was no objection. An implied amendment of the pleading to include the demand even if it was not included in the pleading. It is not enough to know about jurisdiction. You must also know about where the court sits. About the geographical location. VENUE. There are many MTCs but which MTCs? The one in Mandaue? Lapu2x? Cebu City? Venue in the civil case is only venue. Venue in criminal case is jurisdictional  When the venue in the civil case is erroneous, the ground for the MTD is improper venue. When the venue in the criminal case is erroneous, the ground for the MTQ is lack of jurisdiction. There is a shortcut to determine venue. Is the action a personal action or is it a real action? That is the first thing that should come to your mind. The rules do not define the personal actions. It only defines real actions. Those not falling under real actions are personal actions. Real Actions. — Actions affecting title to or possession of real property, or interest therein. If the action is real you are going to look at where the property or any part of it is situated. Do not consider the residences of the parties. The plaintiff has no choice, there is only one choice- where the real property is located. If the action is person, ask where does the plaintiff reside? Defendant reside? The plaintiff has the choice.

Dean Riano’s Lecture 2014

Action to collect a sum of money, plaintiff is from Quezon City, defendant is from Makati City, amount to be collected P350K. Which court has jurisdiction? Metropolitan Trial Court. In what place shall the action be filed (venue)? This is a personal action, the venue is the residence of the plaintiff, residence of defendant at the option of the plaintiff. So the plaintiff can file it in Quezon City or Makati City. If it is filed in Pasay City, improper venue. Remedy is MTD on the ground of improper venue. If denied, file first an MR. Denied, there is now grave abuse of discretion, file with the RTC (hierarchy of courts) a certiorari. Change the problem. A parcel of land located in Pasay City. The plaintiff is from Manila, defendant is from Quezon City. The action is an accion publiciana. The venue is at Pasay City. The court which has jurisdiction depends on the assessed value. If the land is located on the borderline of Pasay and Paranaque, file the action in either place where the part of the real property in litigation is located. You cannot file in both places because it will amount to forum shopping. A parcel of land located in Batangas City. Plaintiff lives in Manila, Defendant lives in Lucena City. Accion publiciana. Assessed value is P10K. What court has jurisdiction?MTC. Plaintiff filed it in MTC Manila because he is from Manila. MTC dismissed it on the ground of lack of jurisdiction. Improper ground, it should have been improper venue. MTC has jurisdiction over the accion publiciana where the assessed value is P10K. The problem is venue and not jurisdiction. But if it was filed in RTC Manila, the problem is not only venue but also jurisdiction. In the civil case where the venue is the defect do not include jurisdiction in your answer. Jurisdiction has nothing to do with venue.

Car A rear-ended Car B, tinamaan sa likuran, coz the driver was negligent. Accident happened in San Fernando, Pampanga. A is from Manila, B is from Quezon City. The action is reckless imprudence resulting in damage to property. Venue? This is a criminal action, so where the offense occurred. So it is in San Fernando, Pampanga. But it was filed in Quezon City, ground for MTQ? Lack of jurisdiction. No criminal case filed, instead an action for damages was filed based on quasi-delict. Venue? Either Manila or Quezon at the option of plaintiff. If the venue is improper because it was filed in Pampanga, the ground for MTD is improper venue. Watch out for stipulations of venue. Can venue be stipulated upon? Yes, venue can be the subject of stipulation. Jurisdiction cannot be the subject of stipulation. Venue can even be waived by the parties if nobody objects; while jurisdiction cannot be waived. For a stipulation of venue to be submitted to the court, 1.

It has to be a written stipulation.

Rule 4, SECTION 4. When Rule not Applicable. — This Rule shall not apply —

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(a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (3a, 5a) An oral stipulation of venue will not bind the court. The court may or may not disregard that stipulation. 2. 3.

The stipulation must be agreed upon before any action is filed. For the stipulation to prevail, the stipulation must be an exclusive or restrictive stipulation because if it is not restrictive the stipulated venue may not be followed even by a party. Jurisprudence calls it a permissive stipulation. If the stipulation is restrictive or exclusive there is no other venue except the one agreed upon. The Rules we talked about a few minutes ago (residence if personal action, location if real action) will no longer apply except the agreed venue. But if the stipulation is permissive, the Rules will still apply including the stipulated venue. To determine whether it is restrictive or permissive, use common sense, just look at the words 

Example. The promissory note was executed by the maker. If the maker is from QC, payee is from Manila. The agreement was that all actions arising from the note shall be filed in Malolos, Bulacan and in no other place. If there was no stipulation and the payee in Manila files a case againt the maker the venue would have been either Manila or QC at the option of the plaintiff. But here you have such a stipulation. It cannot be filed in Manila or QC. It is restrictive, thus it can only be filed in Malolos, Bulacan. If in the example there was no phrase “and in no other place”, it becomes permissive. Thus the action can be filed in Manila or QC or Malolos, Bulacan  Malolos becomes then an additional venue.

The case was filed in RTC, an action for the recission for the contract of sale of a car. P from Manila, D from QC. The action should be filed in either Manila or QC, the car is not a real property. But the case was filed in Makati City. So the court on its own initiative dismissed the complaint on the ground of improper venue. Did the court act correctly in motu proprio in dismissing the complaint? No. No matter how wrong the venue is, if no party complains (there is a waiver of venue) about it, it is not for the court to take the cudgels for the party and dismiss it motu proprio. Is there an instance where the court can dismiss the case on any ground including improper venue motu proprio even without an MTD? Yes. When the case falls under summary procedure. The most popular cases are forcible entry and unlawful detainer.  Revised Rule on Summary Procedure, SECTION 4. Duty of Court. — After the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence

Dean Riano’s Lecture 2014

as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. d-c

The court may dismiss on any of the grounds for the dismissal civil action even without an MTD on forcible entry and unlawful detainer. But the general rule is that the court cannot dismiss the case motu proprio on the ground of improper venue. The court can motu proprio dismiss the case on the ground of lack of jurisdiction over the subject matter, res judicata, litis pendentia, prescription. This does not include improper venue. These grounds are found in Rule 9, SECTION 1. Defenses and Objections Not Pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

Example: The case is in the RTC. MTD was filed for lack of jurisdiction. The court said it had the jurisdiction because it was an action incapable of pecuniary estimation. But the venue was improper so the court dismissed it in its own motion, did the court act correctly? No. It would tantamount to motu proprio dismissal and the court cannot do that. Look, the case was in RTC, surely it was not a summary procedure because if it were so then it would have been filed in MTC. The case is in the MTC, forcible entry, ground for MTD is lack of jurisdiction. The court said it had the jurisdiction but there was improper venue so it decided to motu prorpio dismiss the case. The court is correct because it is a summary procedure where the court can make a motu proprio dismissal on any of the grounds for the dismissal of the civil actions including improper venue. The case is in the RTC, MTD on the ground of improper venue. The court said that the venue is proper but the court had no jurisdiction because the amount is P350,000 and the place is Pasay City. So the court decided to motu proprio dismiss the case on the ground of lack of jurisdiction even if the MTD is anchored on improper venue. Can the court do that? Yes. For lack of jurisdiction over the subject matter, litis pendentia, res judicata and prescription. For all other grounds, there must be an MTD except when the case falls under a summary procedure.

CAUSE OF ACTIONS It is mandatory in ordinary civil actions only ^_^

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When you have a cause of action, the rule is that you state it! If you do not state it you are risking a dismissal of the complaint on the ground that the complaint states no cause of action. In relation to cause of action, the ground for dismissal is not lack of or absence of cause of action but failure to state the cause of action. RULE 16, SECTION 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any ofthe following grounds: xxx (g) That the pleading asserting the claim states no cause of action; xxx You may have a cause of action but if you did not state that in your complaint it could be dismissed for failure to state a cause of action. Kunyari, ang love is cause of action. Mahal na mahal ko sya. Head over heels. Sa pagmamahal ko sa kanya bumabalentong na ako. May cause of action ako sa kanya. Di na nga ako nakakatulog sa pagmamahal ko sa kanya. But di ko masabi na mahal ko sya, that is failure to state a cause of action. Boom! That is a ground for dismissal.  Nangutang ako sa kanya ng P500K. The debt has been due 3 days ago. She demanded but I did not pay. She has a cause of action against me. But once she filed a case against me the allegations are the following: the defendant borrowed P500K; the debt is due; until now the debt has not been paid. There is here a failure to state a cause of action due to absence of one element which is the demand to pay. Do not split a single cause of action. OW, that would be multiplication of suits. That would clog the court dockets. How do you know that there is a splitting of cause of action? Very difficult to explain but we can illustrate. Complaints or causes of action normally have 2 parts. 1. Main relief 2. The incidental relief For example. The main relief is collection of a sum of money. The incidental relief could be interest and/or damage. When you file an action to collect a sum of money you have to include a demand the payment for interest and/or damage because they constitute a single cause of action. The splitting of a single cause of action comes when you file a complaint for sum of money and later on you file a separate complaint for the recovery of interest and/or damages for the same action for the sum of money. That cannot be done. Normally it is the 2nd suit that will be dismissed on the basis of litis pendentia. If the main action is done and after that you sued me for P1M, you won and recovered the P1M. But you forgot to include a claim for interest and/or damages. So you filed an action for that interest and/or damages. That action will be dismissed by filing MTD on the ground of res judicata dahil tapos na yung unang kaso. If pending both, the ground would be litis pendentia. If the ground was res judicata or litis pendentia, isang case lang madi-dismiss. Para ma-dismiss mo yung 2 cases ng sabay huwag mong gamitan ng res judicata or litis pendentia, ground mo dapat forum-shopping, dismiss lahat yan ^_^ willfull and deliberate forum shopping, summary ang

Dean Riano’s Lecture 2014

dismissal. That kind of forum shopping is a separate ground for dismissal not found in Rule 16. Joinder of Causes of Action This is not bawal. It is the splitting of the cause of action that is bawal. Ang isa huwag mong paramihin. But yung marami pwede mong pag-isahin, that’s not bawal. Example, Alex married a widow who has a child. Don’t separate that child from his mom, bawal ang splitting. Sa Pinas, mahilig sa joinder. Pag pinakasalan kita, pati nanay mo, tatay mo pwede tumira sa’tin. This presupposes several causes of action that can be joined. In analyzing this, we are going to make a formula for our own consumption only. hehe. DO NOT USE THESE WORDS IN THE BAR as the bar examiner will not understand you. Formula 1: One on One Situation - One plaintiff vs. One defendant - Ex. Defendant owes the following amounts: PN: P250K, P185K, P275K, borrowed for different reasons, separate transactions, and all of them are already due and demands are made for the payment but no payment was made. How many causes of action are there? 3. How many complaints to be filed? 3. One cause of action = one complaint. Now, is it possible for the plaintiff to file a single action to collect those 3 amounts represented by 3 promissory notes? Yes. If there is only one plaintiff and one defendant, no problem even if they are totally unrelated from each other, they can all be joined as long as none of them is a special civil action nor governed by special rules. If you are outside Metro Manila and you file them separately, the MTC has jurisdiction. If you join all of them, apply the totality rule, now the RTC has jurisdiction. Formula 2: Rumble Situations - Several plaintiffs or several defendants TRANSCRIPT 3 The clerk of court issues summons pursuant to constitutional due process. The summons are served upon the defendant telling him to file an answer; otherwise, the court would grant the relief sought for. But then he tells himself; how can I file the answer when the allegation are vague? He needs more details so he is now going to file a motion for a bill of particulars. So the court orders the plaintiff to file a bill of particulars. The plaintiff followed it. Then the complaint was made clear, the defects became patent as well. So defendant filed an MTD. Unfortunately the court denied it. So defendant just have to file an answer. If he doesn’t file an answer, the consequence would be that he will be in default upon motion to declare default by the plaintiff. Defendant filed an answer but did not make any specific denials. The effect is that all material allegations in the complaint have been admitted. There are no issues, no trial. Plaintiff files a motion on the judgment of pleadings. Defendant filed an answer but did not deny the material allegations. He only denied the amount of interest and/or

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damages. There is an issue as to the amount of interest and/or damages but is not a genuine issue. So plaintiff can possibly file a motion for summary judgment. In filing the answer, the defendant could include a claim against the plaintiff which is called Counterclaim. Defendant could include a claim against a co-defendant called, crossclaim. Someone not party to the action may be brought by the defendant to become a party to the action with leave of court so that he will answer for the liability, thus a Third-Party Complaint. But there is this guy who is not a party to the action, he notices that he has a legal interest in the action, he wants to gate crash but with the permission of the court and that method of entering in the case is called an Intervention. Plaintiff files a complaint, defendant files an answer, plaintiff wants to file an answer to the answer and this is called Reply. All the pleadings now are in court and the pleading stage is over. Then the plaintiff files a motion to set the case for pretrial. Amicable settlement. Trial. Judgment. Losing party can avail of certain remedies against the judgment. Period for appeal: MR, MNT, Appeal After the period of appeal: Annulment of judgment, Petition for Relief, Certiorari. After all remedies have been exhausted and the defendant still lost, the plaintiff shall file a motion for execution of judgment. Is it possible for a party to have remedies even before the case is over? Yes. Can he get something from the court even the court makes a final judgment? Yes. Provisional Remedies. Sample bar problem. X is a stockholder of a corporation. He went abroad and transferred his shares of stocks to Y a mere trustee. For 5 years, Y was receiving the dividends. X came back to Phil and asked Y to transfer back the shares. Y refused. X filed a case and won. When the shares were transferred to the name of X. X then filed a case to recover the dividends Y had received for 5 years. Y filed an MTD on the ground of res judicata. Is the 2nd action is barred by a prior judgment? Yes. When he filed an action to recover his shares he should have included in his prayer the recovery of the dividends that accrued to those shares for the 5 years. They constitute a single cause of action. The main action was to recover the shares, the incidental action was to recover the dividends accruing to those shares. They cannot be separated. There should be no splitting of the cause of action. Failure to include the recovery of damages barred recovery because the first case was already over. Res judicata REMEDIAL LAW; ACTIONS; SPLITTING OF SINGLE CAUSE OF ACTION; INSTANT CASE. — Appellant's position that the second action of appellee for the collection of surcharges cannot be maintained because (1) a party may not institute more than one suit for a single cause of action; and (2) appellee'saction for recovery of the surcharges in question is barred by prior judgment is essentially correct. There is no

Dean Riano’s Lecture 2014

question that appellee split up its cause ofaction when it filed the first complaint on March 23, 1960, seeking the recovery of only the bottling taxes or charges plus legal interest, without mentioning in any manner the surcharges. It cannot be denied that appellant's failure to pay the bottling charges or taxes and the surcharges for delinquency in the payment thereof constitutes but one single cause of action which can be the subject of only one complaint, under pain of either ofthem being barred if not included in the same complaint with the other. 2. ID.; ID.; CAUSE OF ACTION DEFINED. — The classical definition of a cause of action is that it is "a delict or wrong by which the rights of the plaintiff are violated by the defendant." Its elements may be generally stated to be (1) a right existing in favor of the plaintiff; (2) a corresponding obligation on the part of the defendant to respect such right; and (3) an act or omission of the defendant which constitutes a violation of the plaintiff's right which defendant had the duty to respect. 3. ID.; ID.; CAUSE OF ACTION AS AN ACT VIOLATIVE OF VARIOUS RIGHTS. — In the last analysis, a cause of action is basically an act or an omission or several acts or omissions. A single act or omission can be violative of various rights at the same time, as when the act constitutes juridically a violation ofseveral separate and distinct legal obligations. 4. ID.; ID.; ID.; EXAMPLE. — For example, when a passenger of a common carrier, such as a taxi, is injured in a collision thereof with another vehicle due to the negligence of the respective drivers of both vehicles. In such a case, several rights of the passenger are violated, inter alia, (l ) the right to be safe from the negligent acts of either or both the drivers under the law on culpa-aquiliana or quasi-delict; (2) the right to be safe from criminal negligence of the said drivers under the penal laws; and (3) the right to be safely conducted to his destination under the contract of carriage and the law covering the same, not counting anymore the provisions of Article 33 of the Civil Code. The violation of each of these rights is a cause of action in itself. Hence, such a passenger has at least three causes of action arising from the same Act. 5. ID.; ID.; SPLITTING A SINGLE CAUSE OF ACTION; FILING OF SEPARATE COMPLAINTS FOR SEVERAL RELIEFS COVERED. — It can happen that several acts or omissions may violate only one right, in which case, there would be only one cause of action. Again, the violation of a single right may give rise to more than one relief. In other words, for a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing ofseparate complaints for these several reliefs that constitutes splitting up of the cause of action. This is what is prohibited by the rule. 6. ID.; ID.; ID.; EFFECT OF FILING OF FIRST COMPLAINT ON SUBSEQUENT ONES. — Whenever a plaintiff has filed more than one complaint for the same violation of a right, the filing of the first complaint on any of the reliefs born of the said violation constitutes a bar to any action on any of the other possible reliefs arising from the same violation, whether the first action is still pending, in which event, the defense to the subsequent complaint would

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be litis pendentia, or it has already been finally terminated, in which case, the defense would be res adjudicata. Indeed, litis pendentia and res adjudicata, on the one hand, and splitting up a cause of action on the other, are not separate and distinct defenses, since either of the former is by law only the result or effect of the latter, or, better said, the sanction for or behind it. ||| (City of Bacolod v. San Miguel Brewery, Inc., G.R. No. L25134, October 30, 1969) Another example, I filed an action for unlawful detainer against X. I won and he was ejected. 2 months after, I forgot na he did not pay the rentals in arrear. I filed a case to recover those rentals in arrears. It is barred! When you file an unlawful detainer case, it should have already included the recovery of those rentals. No splitting of cause of action is allowed. X borrowed P10M from Y. Y required X to post a collateral. X executed a REM in favour of Y. X did not pay, Y filed an action to collect a sum of money and an action to foreclose the REM. Is there a splitting a single cause of action? You cannot file an action to foreclose REM while an action to collect a sum of money is pending. That is a splitting a single cause of action. The cause of action is to collect. There are two ways of collecting: filing an action to collect a sum of money or foreclosure of REM. You cannot do both. You can only select one. That’s swapang! You are barred. JOINDER 2 situations in Joinder: do not use these words in the bar exam, this is only for our shortcut! 1. One on One Situation D has the following debts in favour of C: P200K, P250K, P300K. Those are ordinary civil actions, borrowed for different purposes and from different occasions, unrelated to each other. They can be joined even if unrelated. 3 causes of action can be joined in one complaint even if unrelated, because there is one plaintiff and one defendant. But look at this, plaintiff wants to include unlawful detainer case. Pwede bang isali? NO. Because unlawful detainer is covered by special rules. Pwede ba isali ang action for partition? No. Because partition is a special civil action. Ang pwede lang isama ang ordinary civil actions. Pwede bang isama ang action for rescission of contract? Yes because it is an ordinary civil action not governed by special rules. Where are you going to file the case? RTC. Totality rule. If you add them all, more than P300K/P400K. Also, one of them is incapable of pecuniary estimation – action for rescission of contract. If one of them is cognizable in the RTC, everything will go to the RTC. If there is one plaintiff and one defendant, all causes of action (ordinary civil actions) even if unrelated can be joined. Just don’t include the special civil actions and those governed by special rules.

Dean Riano’s Lecture 2014

2.

Rumble Situation Ex. Plaintiff v. 3 defendants- a plurality of parties. Here are the debts: D1 borrowed P200K, D2 borrowed P250K, D3 borrowed P300K. All debts are unrelated to each other. How many causes of action? 3 Is it possible for P to join those causes of action? When it is a rumble situation, they cannot be joined as they are products of different transactions. The only option for P is to file a separate action for each. No joinder. In order to join them, there must be clear showing that the causes of actions are related to each other, bound by common occurrence, common question of fact and/or law.

Example: a promissory note contains: We promise to pay Mr. Torres P2M on April 2015. T v. A = P500K T v. B = P500K T v. C = P500K T v. D = P500K There was no stipulation indicating solidarity. Obligation is presumed to be joint. So there are four causes of action. The debts are divided into as many debtors as to the creditors. Joint obligation means that from the point of view from the debtor, KKB, kanya-kanyang bayan. From the point of view of the creditor, KKS, kanya-kanyang singil. Kapag solidary naman ang obligation, one for all and all for one. (911 method of studying ;)) In the case, there are 4 debts, 4 causes of action. T can file an action against A alone but he can only recover P500K. And so with the other debtors but only to the extent of their separate obligations. Now, T can file a single complaint against all of those debtors. There is joinder of causes of action because they are joined by a single transaction when they signed a single promissory note. ^_^ Another situation. 20 pax hired a private bus, not a common carrier. The driver-owner of that bus sings with feelings when he drives and closes his eyes when he hits very high notes. They fell to a cliff. All of the passengers were injured but all survived coz they belong to a different breed of grass masasamang damo. Now they want to file an action for breach of contract against the owner-driver. How many suits could possibly be filed? How many causes of action? 20. But they can file a single complaint against the driver because the plaintiffs are bound by the same accident. They can join together under one complaint. But suppose after one day, that same driver injured another 10 passengers, can these 10 passengers join with those first 20 passengers? No, as they are not bound by the same accident/transaction. We are going to rearrange your rules ^_^ there are causes of action found under the rule on parties. An action based on a class suit. Do you remember that stampede in the Wowowee. 72 old women died. The relatives of those Lolas asked whether a class suit can be filed against ABS-CBN. Answer is No.

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In 1988, M/V Dona Paz of Sulpicio Lines was shipwrecked. The relatives want to file a class suit but it is not proper. The Guimaras oil spill prodded the fishpond owners to file a class suit but again it is not proper. A class suit arises when the following elements concur: 1. when there are several and numerous persons involved. 2. A common or general interest in the subject matter  The issue is not a common or general interest. It must refer to the subject matter. Each person is a subject matter in itself. 10,000 victims of human rights together filed a class suit against the estate of Marcos. Each plaintiff of the 10,000 is a subject matter in itself. My human right is mine. I have no interest in yours. There is no common or general interest. But there is a common interest on the issues on the case. True. But the definition is on the subject matter not on the issue. So, the suit was filed in US not in the Phil. US has unique law on torts that any human right violations committed anywhere is cognizable by US courts. Tingnan mo’ng America, Polisya ng buong mundo, pakialamero. Their class suit is not the common or general interest on the subject matter but the common or general interest on the issues. Yes, we copied our Rules from US but parang magmukhang original, we changed the word “issue” with the word “subject matter”. @.@ kaya mahirap ang class suit sa Pinas. A plane crashed in the bundok of Agusan. The relatives of the dead passengers filed a class suit against the airline. The suit will not prosper as there is no class suit. Your interest is only to your own dead relative. If lola ko yung namatay, dun lang yung interest ko sa lola ko. Huwag ka nang maki-lola sa’kin, may lola ka na eh. Hindi tayo pwede mag-sama2x. Remedy here is joinder of causes of action as they are bound by the same accident. May isang baryo with a factory there that emits toxic fumes. Nagkasakit ang 400 residents there. They all want to file a class suit against the factory. No class suit! The reason is that even if marami tayong nagkasakit, walang common or general interest on the subject matter. Sakit ko, yan lang ang interest ko. Sakit mo, sakit mo yan. Bahala ka sa sakit mo! Ubo ko hindi mo ubo. Consolidated corporation case. A large tract of land is divided into small lots, each is 100 sq.m. occupied by a family. There are 5000 little squares with 100 sq.m. each. So this land is 500,000 sq.m. 50 hectares. 5000 families. One day they woke up and realized that the land grabber has succeeded in having those lots titled in its name. So the 5000 families bonded together to file a class suit to recover the ownership of the land. They are numerous enough but there is no class suit as there is no common or general interest on the subject matter. Each family has an interest only on the land which it occupied not on the land of others. When my interest can be separated from yours, there is no class suit no matter how many we are.

Dean Riano’s Lecture 2014

1. REMEDIAL LAW; CRIMINAL PROCEDURE; LIBEL; VICTIM MUST BE IDENTIFIABLE. — In the case of Corpus vs. Cuaderno, Sr. (16 SCRA 807) this Court ruled that "in order to maintain a libel suit, it is essential that the victim be identifiable (People vs. Monton, L-16772, November 30, 1962), although it is not necessary that he be named (19 A.L.R. 116)." In an earlier case, this Court declared that ". . . defamatory matter which does not reveal the identity of the person whom the imputation is case, affords no ground of action unless it be shown that the readers of the libel could have identified the personality of the individual defamed." (Kunkle vs. Cablenews-American and Lyons, 42 Phil. 760). This principle has been recognized to be of vital importance, especially where a group or class of persons, as in the case at bar, claim to have been defamed, for it is evident that the larger the collectivity , the more difficult it is for the individual member to prove that the defamatory remarks apply to him. (Cf. 70 ALR 2d. 1384). 2. ID.; ID.; ID.; DEFAMATORY REMARKS DIRECTED AT A CLASS OR GROUP OF PERSONS MUST BE SO SWEEPING OR ALL-EMBRACING AS TO APPLY TO EVERY INDIVIDUAL IN THAT GROUP OR CLASS. — In the case of Uy Tioco vs. Yang Shu Wen, 32 Phil. 624, this Court held as follows: "Defamatory remarks directed at a class or group of persons in general language only, are not actionable by individuals composing the class or group unless the statements are sweeping; and it is very probable that even then no action would lie where the body is composed of so large a number of persons that common sense would tell those to whom the publication was made that there was room for persons connected with the body to pursue an upright and law abiding course and that it would be unreasonable and absurd to condemn all because of the actions of a part." It is evident from the above ruling that where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. 3. ID.; ID.; ID.; CLASS SUIT; NOT A CASE OF; PLAINTIFFS DO NOT HAVE A COMMON INTEREST IN THE SUBJECT MATTER OF CONTROVERSY. — We note that private respondents filed a "class suit" in representation of all the 8,500 sugarcane planters of Negros Occidental. Petitioner disagrees and argues that the absence of any actionable basis in the complaint cannot be cured by the filing of a class suit on behalf of the aforesaid sugar planters. We find petitioner's contention meritorious. The case at bar is not a class suit. It is not a case where one or more may sue for the benefit of all (Mathay vs.Consolidated Band and Trust Company, 58 SCRA 559) or where the representation of class interest affected by the judgment or decree is indispensable to make each member of the class an actual party (Borlaza vs. Polistico, 47 Phil. 348). We have here a case where each of the plaintiff has a separate and distinct reputation in the community. They do not have a common or general interest in the subject matter of the controversy. 4. CONSTITUTIONAL LAW; BILL OF FREEDOM OF SPEECH AND PRESS;

RIGHTS; REPORT

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REFERRING TO AN OFFICIAL ACT PERFORMED BY AN ELECTIVE PUBLIC OFFICIAL, WITHIN THE REALMS OF THE PRIVILEGE. — The disputed portion of the article which refers to plaintiff Sola and which was claimed to be libelous never singled out plaintiff Sola as a sugar planter. The news report merely stated that the victim had been arrested by members of a special police unit brought into the area by Pablo Sola, the mayor of Kabankalan. Hence, the report, referring as it does not an official act performed by an elective public official, is within the realm of privilege and protected by the constitutional guarantees of free speech and press. The article further stated that Sola and the commander of the special police unit were arrested. The Court takes judicial notice of this fact. (People vs. Sola, 103 SCRA 393). 5. REMEDIAL LAW; CIVIL PROCEDURE; APPEALS; AN ORDER DENYING A MOTION TO DISMISS, MERELY INTERLOCUTORY AND CANNOT BE THE SUBJECT OF AN APPEAL. — As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal. 6. ID.; ID.; ID.; ID.; EXCEPTIONS. — This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. ||| (Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. L-63559, May 30, 1986) REMEDIAL LAW; PLEADINGS; CAUSE OF ACTION, DEFINED; CASE AT BAR. — the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right. A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: ". . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right." (Marao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947];

Dean Riano’s Lecture 2014

Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. vda. de Yulo, 16 SCRA 251 [1966]; Caseñas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991]. ID.; ID.; MOTION TO DISMISS; LACK OF CAUSE OF ACTION, AS A GROUND; RULE; CASE AT BAR. — It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth or falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? In Militante vs. Edrosolano, this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After a careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for.

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The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16a, 17a) SECTION 20. Action on Contractual Money Claims. — When the action is for recovery of money arising from contract, express or implied, and the defendant dies before the entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until the entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. (21a) Example: an action for a sum of money, defendant-debtor dies. The court was notified by the counsel that the defendant was already dead. The court will ask itself what happens to the case. The case has to continue until the end of the judgment because a money debt is not extinguished by the death of the debtor. It has to be pursued until the entry of the judgment.

||| (Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993)

A REAL PARTY IN INTEREST- A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. Indispensable party – Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

Plaintiff won but defendant died. Solution? The court will order the substitution of the parties. Can be the heirs, executor or administrator. Now, plaintiff won, defendant’s substitute did not appeal. So plaintiff files a motion for the issuance of the writ of execution of judgment. The court cannot grant this. The judgment must be presented as a claim against the estate. Rule 86. Special proceedings will follow. The remedy is not a writ of execution but a claim against the estate. PARTS OF THE COMPLAINT

SECTION 16. Death of Party; Duty of Counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

Certification against forum-shopping Caption, Body, Relief/Prayer What determines the nature of the cause of action and the jurisdiction of the court? Material allegations of the complaint Rule 7, SECTION 5. Certification Against Forum Shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to

Dean Riano’s Lecture 2014

the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n) cdphil

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The one who certifies must be the plaintiff or the principal party. It is not the counsel/lawyer. Hte only instance when the lawyer can sign and certify is when he is equipped with SPA. But that is not found in the Code, it is found in jurisprudence.

Sample Problem: A certificate of non-forum shopping was not attached in the complaint. When the court noticed it, the court notified the plaintiff. The plaintiff said that he wanted to amend the complaint since there was yet no answer. The court granted it to include the said certification. Can the court validly do that? Be careful with the 2nd paragraph of Rule 7, Sec. 5. The court is not correct. It is not curable by a mere amendment. It is in fact a ground for the dismissal of the case. Can the court motu proprio dismiss the case for failure to comply with the certification of forum shopping? No. It must be upon motion and upon hearing. That’s codal! What are the contents of the certificate of forum shopping? Refer to first paragraph of Rule 7, Sec. 5.

When you file a complaint, should it be verified, meaning under oath? Generally No unless required by law or the rules. For example, you are going to file an action for unlawful detainer or forcible entry. All the pleadings in UD/FE should be verified. If you are going to file a small claims case all the forms must be verified. All special civil actions with latin names including prohibition must be verified. An unverified pleading required by law to be verified can still be cured as it is merely a formal defect. The absence of verification is not a jurisdictional defect. If you are going to be asked when a counsel signs his pleadings, what is the significance of the signature of the counsel? Rule 7. It is a certification that he has read the pleadings and that the allegations therein are true and correct of his knowledge and belief. So the complaint has already been filed. As to prescriptions, it will not be prescribed, the court acquires jurisdiction over the plaintiff. After filing the complaint, you may have notice that there are some defects in your allegation. So you can amend it. AMENDMENT As a Matter of Right -

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If the court dismisses the complaint for failure to comply with the certification of non-forum shopping, can the plaintiff refile it as a rule? Yes because the dismissal is without prejudice unless otherwise provided. Suppose you submitted a certification of forum shopping and it was false. What is the effect? You can be subjected to indirect contempt. Administrative sanction. Under that provision there is no dismissal. There is a criminal sanction because of the false certification. Suppose there is a wilful and deliberate forum shopping, there will be summary dismissal (so no need of hearing) with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. No criminal sanction.

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Amendment made before the other party has served his responsive pleading P filed a complaint against D. P realized that he made mistakes in the allegations of his complaints. And D has not filed and served his answer. P does not need a leave of court to amend the complaint. If the amendment is a matter of right and the court rejects it, the court cannot do so because again it is a matter of right. If it does, P can avail of the special civil action of mandamus for the court to accept the pleading. It cannot be denied. Subject matter of amendment: ANY even to correct an error of jurisdiction. Example: P filed an action of sum of money against D. But in the complaint, P failed to state that the debt has matured, that he demanded payment. There is here a failure to state a cause of action. When P realized it, D has not yet filed an answer. P can amend his complaint even without leave of court as it is a matter of right. Suppose D was very quick and filed an MTD, P can still amend his complaint as a matter of right since an MTD is not a responsive pleading. Suppose the court already gave an order of dismissal for failure to state a cause of action. P can still amend the complaint as a matter of right because the order of dismissal is not yet final. P can still make a move within 15 days before finality of the decision. P filed an action to collect P200K against D. P filed it in RTC. Defect in jurisdiction. D filed an MTD on the lack of jurisdiction over the subject matter. P simply filed an amendment to the complaint and added P250K, so it became P450K. P can do that to correct an error of

Dean Riano’s Lecture 2014

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jurisdiction as it is a matter of right. There is yet no responsive pleading. What are you going to do with the pending MTD after the amendment has been made? You deny it. It is moot and academic as there is already an amendment to the complaint In allowing the amendment, the court did not commit a grave abuse of discretion amounting to lack of jurisdiction as the court has no option but to accept it, being a matter of right. If I were the defendant, I will not file an MTD. Instead, I would file an Answer and use lack of jurisdiction as an affirmative defense. To prevent the amendment as a matter of right.

As a Matter of Discretion -

D filed an answer with an affirmative defense of lack of jurisdiction over the subject matter. Then P realized an error in his allegations as to the jurisdiction. He could not amend his complaint now as a matter of right. P has to file a motion for leave to amend the complaint because it is already discretionary.

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And the court said in the interest of justice I will allow the amendment in order to thresh out the merits of the case. Is the court correct? No. This time the court is now acting using its discretion, acting over the complaint over which it has no jurisdiction. It cannot allow an amendment of a complaint over which it has no jurisdiction. The only option is to dismiss. You can only allow amendment as to jurisdiction when the amendment is a matter of right. But when the amendment is a matter of discretion, the court has no jurisdiction to allow the amendment because it would then be acting on a complaint over which it has no jurisdiction. The remedy of the plaintiff is to refile it. In correcting errors on jurisdiction, when the discretion of the court is necessary the court can only act on a complaint over which it has jurisdiction.

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Issues not found in the pleadings but which are tried with the consent of the parties are deemed as if included in the pleadings. In relation to another topic, it is possible for the PLAINTIFF TO DISMISS ITS OWN COMPLAINT. Just like in amendments, dismissal of own complaint is a matter of right before the filing and service of the responsive pleading. -

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Plaintiff need not file an MTD. He only need to file with the court a Notice of Dismissal under Rule 17. It is the notice of dismissal that operates the dismissal of the case. The court need not even have to order the dismissal. The court will only issue an Order confirming the dismissal, not an order of dismissal. D came to P and instead of thanking P for dismissing the case D hit P in the face. So P went back to the court to refile it under Rule 17. It can be since it was a dismissal without prejudice unless the notice says the dismissal was with prejudice. When P refiled it, D pleaded to have

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the complaint dismissed. P filed a Notice of Dismissal again to the court. But when P went home he was hit again by D. P again went to the court to re-file it. But P cannot do so on the basis of Two-Dismissal Rule. P can only dismiss it twice. The 2nd dismissal already operates as an adjudication as to the merits. This was asked in the Bar already in a different way. A complaint was filed. D filed an answer. If you already filed an answer I cannot simply file a Notice of Dismissal. I must now file an MTD and the court decides on it. But this is an Answer with a counterclaim. When I filed the MTD, the court dismissed the complaint. Is the counterclaim also dismissed? The new answer does not anymore make any distinction between a compulsory and a permissive counterclaim. The rule now is in Rule 17,

SECTION 2. Dismissal Upon Motion of Plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. - The dismissal is limited to the complaint. The counterclaim, whatever it is, will not automatically be dismissed. The defendant may proceed with it. - The rule is the dismissal of the complaint does not operate as the dismissal of the counterclaim. - See: (no prejudice to the counterclaim) Sec. 2 of Rule 17, Sec. 3 of Rule 17, Sec. 6 last paragraph of Rule 16 Rule 17, SECTION 3. Dismissal Due to Fault of Plaintiff . — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court Rule 16, SECTION 6. Pleading Grounds as Affirmative Defenses. — If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.

Dean Riano’s Lecture 2014

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When a complaint is dismissed, the counterclaim filed will not be dismissed. It will be dismissed if the defendant himself will dismiss it.

We already mentioned the motu proprio grounds for dismissal: lack of jurisdiction over the subject matter, res judicata, litis pendentia, prescription and Section 3 of Rule 17 because of the fault of the plaintiff:  the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or  failure to prosecute his action for an unreasonable length of time, or  failure to comply with these Rules or any order of the court, Now, the complaint has been filed, it has been amended. The defendant did not file an MTD or the plaintiff did not dismiss his complaint. Let’s now go to the role of the clerk of court – to issue SUMMONS. Why is Summons necessary? To comply with the due process requirement of the constitution. When the action is in personam, to acquire jurisdiction over the person of the defendant. How does the court acquire jurisdiction over the person of the defendant? This presupposes that the action is in personam because an action in rem or quasi-in rem does not require jurisdiction over the defendant but on the res only. You have to make a distinction between a RESIDENT defendant (RD) and a NON-RESIDENT defendant (NRD). When are the summons issued? Upon the filing of the complaint and the payment of the requisite legal fees. The defendant is a resident of the Philippines. Not citizenship! Just residence. Even a foreigner can be considered a Philippine Resident. Another important topic is on Rule 14, SECTION 20. Voluntary Appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) -

voluntary appearance does not mean, “hey your honor I am here, how are you doing?”. It is illustrated when D filed an MTD on the ground of prescription and lack of jurisdiction over the subject matter. That is a voluntary appearance because I did not include in my motion lack of jurisdiction over the person of the defendant. Or I filed an answer with affirmative defences and I filed a counterclaim. An appearance in court which questions the jurisdiction of the court over the defendant is not a voluntary appearance. Example, you filed an MTD (you have no summons, here, ok?) on the ground of

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prescription, failure to state a cause of action, this is a voluntary appearance because not one of the grounds questions the jurisdiction of the court over the defendant. x x x 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. - In order to avoid voluntary appearance, you have to add this, “lack of jurisdiction over the person of the defendant” even if you add any other grounds. Now, defendant received the summons and went to court to file MTD questioning the jurisdiction of the court over his person. There is no voluntary appearance. D filed an MTD on the ground of lack of jurisdiction over the subject matter. This is a voluntary appearance due to the absence of the ground of lack of jurisdiction over the person of the defendant. Normally the defendant does not make any voluntary appearance. Normally he hides from the sheriff or the process server. So if no voluntary appearance, you go to the second one- the valid service of SUMMONS. Remember that our defendant is a residentin the Philippines. When you talk about a valid service of summons there is a priority service. Rule 14. SECTION 6. Service in Person on Defendant. — 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. Do not call it personal service. It must be called service in person. The old name was personal service but the new name is service in person in order to avoid confusion. Personal service is not found in Rule 14 but rather in Rule 13 (Filing and Service of Pleadings, Judgments and Other Papers) of SECTION 6. Personal Service. How do you make service in person? You go to the defendant, find him in person and give the summons, copy of the complaint, etc. to him. Suppose he refuse to accept it or receives it but refuses to sign, sheriff must tender it to him. Tendering is a part of service in person. Kunin man nya o hindi, the service is complete. The court acquires jurisdiction over the person of the defendant. Sheriff must write the circumstances of the service. There is a rebuttable presumption of regularity of the performance of official duties. Rule 131, Sec. 3m. The sheriff is supposed to exert efforts to serve the defendants the summons in person. Such efforts must be written on his return and he must exert honest to goodness efforts in trying to locate the defendant. Pagpunta nya sa house ng defendant, di pwede basta iwanan sa wife or kids. MTD for lack of jurisdiction over the person of the defendant because the mode of service is defective. So, perwisyo kay plaintiff.

Dean Riano’s Lecture 2014

"Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.||| (Manotoc v. Court of Appeals, G.R. No. 130974, August 16, 2006) But if after those efforts he could not be found within the reasonable time only then can you go to the next mode of Substituted service. This is an exception to Sec. 6. But the return of the sheriff must indicate the efforts undertaken to find the defendant. Problem: In order to serve the summons the sheriff went to the house of the defendant only to find that the latter was not there. The wife of the defendant instead signed it in his behalf. Did the court acquire jurisdiction? The court did not acquire jurisdiction over the defendant since there was no honest efforts to locate the defendant. Rule 14, SECTION 7. Substituted Service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. There must be a strict compliance with the service of summons. If the service of summons is invalid, D must file MTD for lack of jurisdiction over the person of defendant. If dismissed, it can still be re-filed. Do not use summons by publication. Remember! This is a resident defendant, an action in personam. General Rule: Summons by publication will not serve to acquire jurisdiction over a a resident defendant, an action in personam. In an action in personam, dedicate that to you. General rule is to serve it in person. Except if cannot be located then substituted service. In an action in rem, to whom it may concern. To the whole world. Exception: Rule 14, SECTION 14. 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. Rule 14, SECTION 16. Residents Temporarily Out of the Philippines. — When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be

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also effected out of the Philippines, as under the preceding section. Example: I borrowed P5M from Rocky. He demanded payment from me, I did not pay. So he filed a suit against me. Sheriff went to my known address but he found that my house was abandoned. The neighbours cannot tell where I am. Can Rocky ask leave of court to have the summons by publication? Yes. Because my whereabouts are unknown. Car A rear ended Car B. B was unconscious, A is nowhere to be found. He can file a case against an unknown defendant. Rule 14, Sec. 14. TRANSCRIPT 4 How to acquire jurisdiction over the person of the Resident Defendant? The rule is if your action is an action in personam, you cannot use summons by publication as it can only be acceptable in actions in rem or quasi in rem. The exceptions are in Sec. 14 of Rule 14 and Sec. 16 of Rule 14. This refers to the Philippine Resident who is temporarily outside the Philippines. But the word summons by publicaiton is not found in Sec. 16. Sec. 16 makes reference to the immediately preceeding section which is Sec. 15 and Sec. 15 mentions as one of the summons the summons by publication. By the way, Sec. 15 is not used in actions in personam. It is Sec. 16 that is used in actions in personam because it used the words “any actions”. Also, Sec. 14 used the same words “any actions”. For example, I am a Philippine Resident and I caused damage to another person. When he filed a case against me, I was abroad. He could not find me in my residence and I could not be served in person. Can I be served with summons by publication? Yes. Temporarily abroad. But summons by publication is not the only way of serving summons for residents temporarily abroad. The sheriff can use substituted service of summons because I am a resident in the Philippines. Example: A promissory note was executed. The due date was Dec 5 1998. But on Nov 10, 1998, an action was filed to collect a sum of money. Summons was sent and served upon D on Dec 7, 1998. Service in person. What is the effect of these summons? There is here a failure to state a cause of action. These summons have no effect on the jurisdiction of the defendant as there is actually no case. This will be a subject to an MTD. Now if summons was sent on Dec 7 1998, did it validate the premature filing of the complaint? No. Because the action was prematurely filed. On Dec 7 when the summons was sent and the due date of the PN was Dec 5, can he make the proper amendments in order to correct the defect? No, as there is nothing to amend. You can only amend something that has already a cause of action. This is Bar 1999.

NON-RESIDENT DEFENDANT

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She came to the Philippines as she was fascinated about the Mayon Volcano, a perfect cone, and the Chocolate Hills of Bohol. She is a tourist, not a resident of the Philippines. She met me and asked for money as she ran out of money. I lent her money and she executed a promissory note. I demanded payment upon due date but she refused. I sued her. But when the sheriff went to manila, her residence, she has already flown back to Brazil. The court needs to acquire the jurisdiction over her as the action is in personam. Can the court acquire jurisdiction? 1. Voluntary appearance 2. Valid service of summons  Service in person within the Philippines. There is no substituted service as this presupposes that the defendant has a residence or regular office in the Philippines. But she already has left. There was no voluntary appearance and she cannot be served with summons in person as she is not in the Philippines. The court cannot acquire jurisdiction. There can be no valid service of summons by publication using extraterritorial service of summons because Sec. 15 does not apply to actions in personam. What am I going to do? I shall apply for the issuance of preliminary attachment. The case now will affect her properties in the Philippines. Sec. 15 comes in. I will attach her property to convert the action in personam into an action quasi-in rem. If it is now an action quasi-in rem it will now be a case affecting the defendant’s property. The court will now have jurisdiction over the Res. The case can go on even on her absence. The case is already a quasi-in rem action. Now, I won the case, the property will be sold on execution. But the highest bidder only bid P600K. Her utang is P700K. So nakuha ko na yung P600K. Can I singil her the deficiency? No. It is already an in personam action. The court cannot order her to pay as it has no jurisdiction over the person. You still have to pay another case. But if yung tumakas is a resident, you don’t need a writ of attachment as the court can have jurisdiction over the person through a substituted service or summons by publication. Sec. 15 – in rem and quasi-in rem for a non-resident outside the Phil. Not for an action in personam. An action for the declaration of nullity of marriage is not in personam. It is an action in rem because it involves the status of the plaintiff under sec. 15. It is not directed against the wife who is only a nominal party. It is directed agasint the status, an in rem. Under Section 15 of Rule 14, a defendant who is a nonresident and is not found in the country may be served with summons by extraterritorial servicein four instances: (1) when the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject of which is property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; or (4) when

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the property of the defendant has been attached within the Philippines. In these instances, extraterritorial service of summons may be effected under any of three modes: (1) by personal service out of the country, with leave of court; (2) by publication and sending a copy of the summons and order of the court by registered mail to the defendant's last known address, also with leave of court; or (3) by any other means the judge may consider sufficient. Applying the foregoing rule, the trial court required extraterritorial service of summons to be effected on Margarita in the following manner: . . ., service of Summons by way of publication in a newspaper of general circulation once a week for three (3) consecutive weeks, at the same time, furnishing respondent copy of this Order as well as the corresponding Summons and copy of the petition at her given address at No. 96 Mulberry Lane, Atherton, California, U.S.A., thru the Department of Foreign Affairs, all at the expense of petitioner. (Emphasis ours) The trial court's prescribed mode of extraterritorial service does not fall under the first or second mode specified in Section 15 of Rule 14, but under the third mode. This refers to " any other means that the judge may consider sufficient." The Process Server's Return of 15 July 1991 shows that the summons addressed to Margarita together with the complaint and its annexes were sent by mail to the Department of Foreign Affairs with acknowledgment of receipt. The Process Server's certificate of service of summons is prima facie evidence of the facts as set out in the certificate. Before proceeding to declare the marriage between Margarita and Abelardo null and void, the trial court statedin its Decision dated 8 November 1991 that "compliance with the jurisdictional requirements hav(e) (sic) been duly established." We hold that delivery to the Department of Foreign Affairs was sufficient compliance with the rule. After all, this is exactly what the trial court required and considered as sufficient to effect service of summons under the third mode of extraterritorial service pursuant to Section 15 of Rule 14. ||| (Romualdez-Licaros v. Licaros, G.R. No. 150656, April 29, 2003) Petitioner Banco do Brasil takes exception to the appellate court’s declaration that the suit below is in rem, not in personam, thus, service of summons by publication was sufficient for the court to acquire jurisdiction over the person of petitioner Banco do Brasil, and thereby liable to private respondent Cesar Urbino for damages claimed, amounting to $300,000.00. Petitioner further challenges the finding that the February 18, 1991 decision of the trial court was already final and thus, cannot be modified or assailed.

Dean Riano’s Lecture 2014

Petitioner avers that the action filed against it is an action for damages, as such it is an action in personam which requires personal service of summons be made upon it for the court to acquire jurisdiction over it. However, inasmuch as petitioner Banco do Brasil is a non-resident foreign corporation, not engaged in business in the Philippines, unless it has property located in the Philippines which may be attached to convert the action into an action in rem, the court cannot acquire jurisdiction over it in respect of an action in personam. The petition bears merit, thus the same should be as it is hereby granted. First. When the defendant is a nonresident and he is not found in the country, summons may be served extraterritorially in accordance with Rule 14, Section 17 of the Rules of Court. Under this provision, there are only four (4) instances when extraterritorial service of summons is proper, namely: "(1) when the action affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is property, within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant non-resident’s property has been attached within the Philippines." In these instances, service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient. Clear from the foregoing, extrajudicial service of summons apply only where the action is in rem, an action against the thing itself instead of against the person, or in an action quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. However, where the action is in personam, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. When the defendant is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdiction over the person. This cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him. In the instant case, private respondent’s suit against petitioner is premised on petitioner’s being one of the claimants of the

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subject vessel M/V Star Ace. Thus, it can be said that private respondent initially sought only to exclude petitioner from claiming interest over the subject vessel M/V Star Ace. However, private respondent testified during the presentation of evidence that, for being a nuisance defendant, petitioner caused irreparable damage to private respondent in the amount of $300,000.00. Therefore, while the action is in rem, by claiming damages, the relief demanded went beyond theres and sought a relief totally alien to the action. It must be stressed that any relief granted in rem or quasi in rem actions must be confined to the res, and the court cannot lawfully render a personal judgment against the defendant. Clearly, the publication of summons effected by private respondent is invalid and ineffective for the trial court to acquire jurisdiction over the person of petitioner, since by seeking to recover damages from petitioner for the alleged commission of an injury to his person or property caused by petitioner’s being a nuisance defendant, private respondent’s action became in personam. Bearing in mind the in personam nature of the action, personal or, if not possible, substituted service of summons on petitioner, and not extraterritorial service, is necessary to confer jurisdiction over the person of petitioner and validly hold it liable to private respondent for damages. Thus, the trial court had no jurisdiction to award damages amounting to $300,000.00 in favor of private respondent and as against herein petitioner. Second. We settled the issue of finality of the trial court’s decision dated February 18, 1991 in the Vlason case, wherein we stated that, considering the admiralty case involved multiple defendants, "each defendant had a different period within which to appeal, depending on the date of receipt of decision." Only upon the lapse of the reglementary period to appeal, with no appeal perfected within such period, does the decision become final and executory. In the case of petitioner, its Motion to Vacate Judgment and to Dismiss Case was filed on April 10, 1991, only six (6) days after it learned of the existence of the case upon being informed by the Embassy of the Federative Republic of Brazil in the Philippines, on April 4, 1991, of the February 18, 1991 decision. Thus, in the absence of any evidence on the date of receipt of decision, other than the alleged April 4, 1991 date when petitioner learned of the decision, the February 18, 1991 decision of the trial court cannot be said to have attained finality as regards the petitioner. ||| (Banco Do Brasil v. Court of Appeals, G.R. Nos. 121576-78, June 16, 2000) For non-residents GR: no summons by publication Exc: None. (exceptions are only available for residents) How do you serve summons on prisoners? That’s codal! Not yet in the bar  Rule 14, SECTION 9. Service Upon Prisoners. — When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose How do you serve upon domestic corporation? Rule 14, SECTION 11. Service Upon Domestic Private Juridical

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Entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel Sec. 6,7,14,15,16,20 – priority provisions of Rule 14. Summons are served to the defendant for him to answer. But there are instances when he cannot answer because there are some details which he needs before he could file an intelligent answer. He files a Motion for a Bill of Particulars. You do not use this to gather the evidence which can be achieved through modes of discovery or using the purpose of pre-trial. You do not use MBP to prepare for trial. It is to prepare for a responsive pleading. RULE 12, Bill of Particulars,SECTION 1. When Applied for; Purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not 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. (1a) There is actually a MBP in criminal case. Rule 116, SECTION 10. Bill of Particulars. — Accused may, at or before arraignment, move for a bill of particulars to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects and the details desired.||| (1985 Rules on Criminal Procedure (Rules 110-127, Rules of Court), 1985 Rules on Criminal Procedure [1985]) Motions like MTD generally are litigated because they have to be heard. But MBP may not be a litigated motion. Rule 12, Section 2. Action by the Court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either DENY or GRANT IT OUTRIGHT, or ALLOW THE PARTIES THE OPPORTUNITY TO BE HEARD. (n) -So hearing of the motion is just an option to the court. It is not mandatory You have to follow the order of the court to submit the Bill of Particulars within 10 days from notice. Otherwise, the court can strike out the complaint. This is like a dismissal. In relation to Sec. 3 Rule 17, as you did not comply with the order of the court, fault of the plaintiff. So now the complaint is clearer because of the motion for bill of particulars. You can now file the other option which is to file a motion to dismiss. A motion to dismiss is an Omnibus Motion which is defined in Rule 15, SECTION 8. Omnibus Motion. — Subject to the provisions of Section 1 of Rule 9, a motion attacking a

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pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a) Defenses that are not waived are found in Rule 9, SECTION 1. Defenses and Objections Not Pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. The omnibus motion rule will only apply if you file a motion to dismiss. You have to include all grounds available; otherwise, deemed waived. Illustration: You filed a motion to dismiss with the following available grounds: 1. failure to state a cause of action, 2. improper venue, 3. prescription, 4. lack of jurisdiction over the person of the defendant, 5. failure to comply with the statute of frauds. But you only stated the grounds #1 and #4. Your motion was denied. So you filed an answer. Can you still use improper venue, prescription and failure to comply with statute of frauds as affirmative defense in your answer? You cannot use #2 and #5 anymore but you can use prescription as it is not waived. That is how to use the omnibus motion rule. So, sa omnibus motion rule (OMR), if the grounds are available, use it. If you don’t use it, it’s deemed waived. But there are 4 defenses that are not waived: lack of jurisdiction over subject matter, res judicata, litis pendentia and prescription. Again, the OMR will not apply if you did not file an MTD because there is nothing to be waived. What will apply is SECTION 6. Pleading Grounds as Affirmative Defenses. — If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n) -

In other words, you can use those grounds as affirmative defences in your answer as they are not waived. You could even ask for a preliminary hearing at the discretion of the court.

If the MTD is granted, it is possible to re-file your case depending on the ground. For example, my case was dismissed due to lack of jurisdiction as I filed it in the RTC when it should have been filed on MTC. Re-file it in the proper court. Same with improper venue.

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The case was dismissed for failure to state cause of action, refile it. And even if there was a pending MTD for failure to state the cause of action, well I can simply amend the complaint as MTD is not a responsive pleading, I still have the right to do so. There are grounds for dismissal where the case is over and you cannot re-file. These are found in Rule 16, SECTION 5. Effect of Dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof shall bar the refiling of the same action or claim. (n) (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (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; If those are the grounds for dismissal you can no longer refile the case as it has the effect on the adjudication of the merits of the case. This dismissal is with prejudice. The remedy here if you do not agree with the court is to Appeal. You do not use certiorari because appeal is available. I filed a complaint against D. D filed MTD on the ground of prescription. Court granted the dismissal. I did not agree with the court. Is this the dismissal that put an end in the case? The case is over. There is already an adjudication on the merits. Thus, the remedy is Appeal. Be careful with those words “with prejudice”, “without prejudice” ^_^ “without prejudice” – case can still be re-filed, certiorari. “adjudication of merits” – case is over, appeal. “with prejudice” – can no longer be re-filed, appeal. D filed an MTD but the complaint was not dismissed. D has no alternative but to file an Answer. An answer is a responsive pleading to a complaint and to a counterclaim, crossclaim, third-party complaint, complaint in intervention as they are all complaints. Two parts of an answer are negative defense and affirmative defense. In negative defense, use specific denials as described by the Rules in Rule 8, SECTION 10. Specific Denial. — A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to

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form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (10a) How do you make a specific denial? You go over the specific allegations, paragraph by paragraph. Make reference to the paragraph where the allegation was made then you say the defendant denies that he borrowed money from the plaintiff. Or to admit a part or deny a part. Example, D specifically denies that he borrowed money from the plaintiff as in fact the money was given as a donation. Another way of denial is by saying that the defendant admits that he borrowed money but he denies that he did not pay as in fact he already pay. But if your denial is like this, “I specifically deny all the allegations in the complaint”. That is not a specific denial. Instead it is a general denial which are deemed admissions. A denial to be specific does not have to be under oath as long as it follows the Rule 8, Sec. 10. When should denial be under oath? 1.

ACTIONABLE DOCUMENTS

Rule 8, SECTION 7. Action or Defense Based on Document. — Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7) SECTION 8. How to Contest Such Documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) -

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In case an actionable document is involved. It is a document that is a basis for an action or defense. If I file an action to collect a sum of money on the basis of promissory note you executed on my favour. That PN is the basis of my claim which is an actionable document. If Foreclosure of REM- Deed of REM An actionable document can also be a basis of defense. So if I sue you for collection of sum of money and your defense is payment evidenced by receipt. The receipt is an actionable document. If I want to deny the genuineness and due execution of your document I have to deny it specifically plus an oath. It must be a verified denial. Specific denial is not enough. If it is not under oath, you are admitting impliedly the genuineness and due execution of his actionable document. You’re only bound to deny it under oath if you are a party to the instrument.

Dean Riano’s Lecture 2014

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There are instances when you don’t have to deny the document under oath:  If the person denying the genuineness is not a party to the instrument or  A previous request to show the original has been refused. 2.

ALLEGATIONS OF USURY IN A COMPLAINT SECTION 11. Allegations Not Specifically Denied Deemed Admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath.

Illustration: P filed a complaint for sum of money against D. D said in his defense that P’s interest is usurious. The allegations of the usury by D is in his answer. P did not reply to the allegations of the usury. Are the allegations of the usury deemed admitted? No as they are not allegations of usury in the complaint that is filed to recover usurious interest. The allegation of usury here is a defense in an answer. Not all allegations of usury of interest need to be denied under oath. It should be allegation of usury in a complaint that is filed to recover usurious interest. What if the defendant does not file and serve his answer to the complaint? Now comes in the principles of Rule 9, SECTION 3. Default; Declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a, R18) (a) Effect of order of default. — A party in default shall be entitled to notice of subsequent proceedings, but not to take part in the trial. (2a, R18) (b) Relief from order of default. — A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interestof justice. (3a, R18)

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(c) Effect of partial default. — When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18) (d) Extent of relief, to be awarded. — A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18) (e) Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18) Illustration: I am the judge and I was examining the records of the case. I noticed that D has been duly served with summons but it’s already 2 months and there was no answer. So I issued an order of default. Did I follow the rules when I immediately ordered the default of the defendant. This has not been asked in the Bar yet. The court is not correct because you can only declare a party in default upon motion. The court cannot motu proprio declare D in default. What is the ground for declaration of default? Only one ground in Sec. 3 of R9: failure to answer within reglementary period. Thus a failure to appear in pre-trial is not a ground to default. It has a different consequence. The court there would allow the plaintiff to present evidence ex parte. But the rules do not call it default. Also the failure to appear in trial is not a ground to default. This is not a basketball game na pag di ka sumipot ay default na. But is there a possibility that even if you file an answer there can be a default? Yes. Theoretical possibility: D filed an answer. I wanted to file a reply but her answer needed more particulars before I can file a reply on her answer. Remember that a Motion for bill of particulars is not limited to a complaint. It could be directed against any pleading. Now, back to the story, the court ordered her to submit a bill of particulars to her answer and she refused to do so. So the court drop out her answer. It is as if there is no answer. I could move to declare her in default. But another situation is found in the Rules. The failure to comply with the modes of discovery could lead to a judgment in default. Rule 29, Section 5. Failure of Party to Attend or Serve Answers. — If a party or an officer or managing agent of a party wilfully

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fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees. (5) -

The answer is not an answer to the complaint but an answer to the mode of discovery. So the party in default here could be against the plaintiff who does not comply with the modes of the discovery. Not only limited to defendant.

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

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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. The court has 2 options: 1. proceed to render judgment or 2. require the plaintiff to present the evidence. But also take note of the instances where you cannot be declared in default: 1. actions for annulment of marriage 2. action for declaration of nullity of marriage 3. action for legal separation That can be used as a trick question! Take note also that if you win by default, you cannot be given more than what you are asking for. You cannot be given different from it either. . Rule 9, SECTION 3. Default; Declaration of. — x x x.x x x (d) Extent of relief, to be awarded. — A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18) Kung hinihingi mo ay P10M kahit na ang ebidensya mo’y P20M, P10M lang ang ibibigay sayo. But the story is different if it is really a trial on the merits. The pleadings say P10M. The evidence proved P15M during the trial. There was no objection. The court can grant P15M because it is as if it was the issue in the pleadings. But in case of defaults, you are only limited to what you have asked for even if the evidence says the contrary.

xxx -

A plaintiff can be considered in default also here. So these are the hidden defaults. The public default is in Rule 9. That is what is commonly known to the public.

Illustration: I am the defending party, I did not file an answer. The plaintiff filed a motion to declare me in default. Jurisprudence has decided, not literally in accordance with the Rules which say “shall declare”, that declaration in default is not mandatory on the part of the court. Even if the answer is filed late but admitted by the court, it should not declare the defendant in default. Now, a person declared in default, he is entitled to be given a copy of the motion to declare him in default. If he is declared in default, he is not entitled to participate in the proceedings. He has lost his standing in court. But he is entitled to the notices of the subsequent proceedings. Only notices, not participation. How could a defaulted defendant participate in the trial even if he has been declared in default? He could appear as a witness because default does not prevent you from becoming a witness. It only prevents you from participating in the proceedings as a party. Be very careful on this. Rule 9, SECTION 3. Default; Declaration of. — x x x. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his

Do not forget the kinds of COUNTERCLAIMS: Permissive, Compulsory The first indication that the counterclaim is compulsory is that it has a subject matter really related to the complaint. If no relation, it is merely permissive. But sometimes even if there is a relation between the topic of the counterclaim and the topic of the complaint, it is still considered permissive if the counterclaim is filed with the court which has no jurisdiction over it. Example, I am a cook in a restaurant of Radisson Blu Hotel. Because of my negligence, the kitchen was burned to the extent of P10M. The management dismissed me and sued me for damages. I filed an answer and my counterclaim is illegal dismissal. My counterclaim was related to the complaint; it was about the burning that’s why I was dismissed. But my counterclaim is permissive and not compulsory because a regular court has no jurisdiction over illegal dismissal which must instead be filed with the labor arbiter.

Dean Riano’s Lecture 2014

I was sued by the plaintiff-seller for non-payment of P250K representing the balance for the purchase of a car. My counterclaim is that I am not going to pay you because I am going to collect from you P500K because your car sold to me has a hidden defect. My counterclaim is related to the complaint but it is merely permissive because an MTC has no jurisdiction over a counterclaim of P500K. It is beyond its jurisdiction. If you go to the RTC, if your counterclaim is only P200K it is still compulsory even if the amount is not within RTC. The rule is different in MTC. If it is not within its jurisdiction, permissive. But in RTC, even if it’s not within its jurisdiction, still compulsory counterclaim. Bar 2010 You sued me for collection of sum of money. I am also suing you for: damages for filing a complaint with no basis at all, I was forced to litigate so I hired a lawyer because of your baseless complaint and I got sick so I got hospitalized. Compulsory Counterclaim, because all of the expenses are the result of the filing of the complaint. You sued me for collection of P10M. My counterclaim was this, bayaran mo din ako ng P10M because my warehouse which you rented was burned because of your negligence. Permissive, because it has no relation. The complaint was based on a contract of loan. The counterclaim was based on quasi-delict. Why make a distinction between compulsory and permissive counterclaim? If you know that your counterclaim is permissive, the other party has to file an answer; otherwise, the defendant can declare him in default for failure to file an answer. A permissive counterclaim is like an independent complaint. It has to be answered. A compulsory counterclaim does not have to be answered. Compulsory counterclaim does not need a certification against forum shopping but the permissive counterclaim because it is considered an initiatory pleading must be accompanied with a certification against forum shopping. Under the present rules, SC requires payment for both compulsory and permissive counterclaims since 2004.

by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (11) -

Is a reply mandatory? No. Rule 6, SECTION 10. Reply. — A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged

in other words, even if you do not file a reply, the allegations in the answer are deemed denied.

But contrasted with complaint, it is different. Rule 8, SECTION 11. Allegations Not Specifically Denied Deemed Admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath.

When are you advised to file a reply even if you are not obligated to file a reply? IOW what is the circumstance requiring you to file a reply? If the answer of the defendant uses an actionable document as a defense and you want to deny the genuineness and due execution of that document, you have to reply under oath. The last pleading is the reply. Then the case is deemed submitted to the court for decision. Yung mga rejoinder na yan they’re not pleadings but mere manifestations. So papasok na ang pre-trial. Rule 18. PRE-TRIAL -

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A compulsory counterclaim will be barred if not invoked in the same case. But a permissive counterclaim will not be barred. It will be filed as an independent action. When the complaint is dismissed, there is no automatic dismissal of the counterclaim. The dismissal is limited to the complaint. It does not cover the complaint.

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Rule 18 It can only be set when all the pleadings are in court, OW it’s premature. In the civil case, it is not the court which motu proprio set the case for pre-trial. The PLAINTIFF must file a motion ex parte to set the case for pre-trial. If he does not file a motion to set the case for pre-trial, the case will not move. Suppose the case has not moved for an unreasonable period of time it is considered as failure to prosecute the case. This is the fault of the plaintiff. Under Rule 17, Sec. 3, it is a ground for dismissal. But now it is not anymore a ground for dismissal since July 13, 2004 if the plaintiff failed to file a motion for pre-trial. Plaintiff is given 5 days from the filing of the last pleading to file the motion to set the case for pre-trial. OW, the branch clerk of court will set the case in pre-trial. Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pretrial conference. If theplaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-

Dean Riano’s Lecture 2014

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trial. DISHEA||| (Guidelines in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures, A.M. No. 03-1-09-SC [2004])

Pre-trial is mandatory in trial courts for both civil and criminal case. On the other hand, Preliminary conference is not mandatory in appellate courts.

SECTION 2. Nature and Purpose. — The pre-trial is mandatory. The court shall consider:

RULE 48, Preliminary Conference, SECTION 1. Preliminary Conference. — At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference: (a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised; (b) To define, simplify and clarify the issues for determination; (c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other matters which may aid the court in the prompt disposition of the case. (Rule 7, CA Internal Rules) (n)

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability proceedings; and (i) Such other matters disposition of the action.

or as

necessity of suspending may

aid

in

the

the

prompt

There is a pre-trial in a criminal case. Rule 118. In a criminal case, the prosecution need not file a motion to set the case for pre-trial. The pre-trial will be set by the court after arraignment and within 30 days after it acquired jurisdiction over the accused. A pre-trial in a criminal case is MANDATORY. Rule 118, SECTION 1. Pre-trial; Mandatory in Criminal Cases. — In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pretrial conference to consider the following: (a) plea bargaining; (pleading to a lesser offense) (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. (secs. 2 and 3, cir. 38-98)

The equivalent of pre-trial in appellate courts and in a civil case in summary procedure is preliminary conference.

It is also possible to have a preliminary conference in the Supreme Court, Rule 56, SECTION 2. Rules Applicable. — The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: x x x Suppose the plaintiff and defendant do not want to settle the case amicably and the court decided to end the pre-trial, is the court correct? No. Amicable settlement is not the only purpose of pre-trial. You can have ADR, stipulations and admissions of facts, limit the number of witness, etc. Thus, failure to reach an amicable settlement is not a ground to terminate pre-trial as there are many other purposes for a pre-trial. This is one way of telling you to remember the purposes! Now let’s compare it with criminal case. Amicable settlement is not one of the purposes of the pre-trial in a criminal case. There are no amicable settlement and compromise in criminal case because of Rule 130, Section 27. Offer of compromise not admissible. — xxx In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt. xxx Is there a matter in criminal proceeding that can be subject to compromise or amicable settlement? Yes. A criminal case has two aspects: criminal and civil RPC, ARTICLE 100.Civil Liability of Person Guilty of Felony. — Every person criminally liable for a felony is also civilly liable.

Dean Riano’s Lecture 2014

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Here, only the civil aspect can be compromised. But even if the civil aspect is compromised, this will not prevent the State from imposing the penalty for that offense.

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NCC, ARTICLE 2034.There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of the legal penalty.

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Let’s talk about reality, this lady pointed a bazooka at me and said, your money or your life. There is robbery here. An information for robbery was filed. Then, she said, “huwag mo na akong idemanda, i’ll return to you the money I stole with interest”. So I told the fiscal about it. Then fiscal filed motion to withdraw the information. He’s not gonna say that it’s because of the compromise. He’d say that the reason was based on the absence of evidence and eye-witnesses. There is actual compromise here. But he’s not gonna say it in court, otherwise he will be subjected to disciplinary action for ignorance of the law.

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There’s one aspect of a difference in pre-trial of civil case and pre-trial of criminal case which you should look out for. If the prosecutor and accused do not appear in a pre-trial of a criminal case, there is no dismissal of the case. But if a plaintiff, without justifiable cause, does not appear in the pre-trial of civil case, there is a possible dismissal of the case. If defendant does not appear, that would be a ground for the court to ask the plaintiff to present the evidence ex parte. If you are a party who cannot attend a pre-trial, you must designate a representative in writing. The authorization must contain specific authorization. Rule 18, SECTION 4. Appearance of Parties. — It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing 

to enter into an amicable settlement,



to submit to alternative modes of dispute resolution, and



to enter into stipulations or admissions of facts and of documents

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Rule 18, SECTION 5. Effect of Failure to Appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20) Suppose there is no amicable settlement, the next would be Trial. Rule 30 There can be a judgment without a trial. Trial is only necessary if there are issues of facts to be resolved. You do not resolve issues of law in a trial, but only issues of facts. If everything has been admitted by the parties already there is no need for a trial. Plaintiff may file a motion for a judgment on the pleadings. A judgment on the pleading and a summary judgment are both judgments with no trial. There can be a judgment as a consequence on a mere Motion to Dismiss when the dismissal is res judicata; if the ground for dismissal is prescription, payment and unenforceable under Statute of Frauds, you cannot refile because there is a judgment. The remedy is appeal. You can only appeal a judgment. In a summary procedure, in a civil case, there is no trial. There are only affidavits, pleadings and depositions. There is a judgment. A trial can be dispensed with by agreement of the parties. Rule 30 SECTION 6. Agreed Statement of Facts. — The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (2a, R30) Is it possible to have a modified trial in a civil case? Yes. In Civil cases, SECTION 5. Order of Trial. — Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: xxx

In trial practice, it is also the lawyer who is given the authority to compromise. So when the lawyer appears, he appears in two capacities: as a counsel and as a personal representative of the party.

Illustration: P filed an action for sum of money worth P5M against D. D admitted the debt but alleged that he paid it already. Upon motion by D, the court may grant D to present evidence ahead of P to prove the fact of payment.

When can a party be considered as absent even if present? The failure to file a pre-trial brief.

Rule 31, SECTION 2. Separate Trials. — The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or thirdparty complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues

If the plaintiff fails to appear in the pre-trial and the case is dismissed, can the plaintiff re-file the case? General rule: it cannot be re-filed unless otherwise ordered. It is with prejudice. Remedy here is to appeal.

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All of these are discretion of the court

Dean Riano’s Lecture 2014

Compare this with criminal cases, Rule 119. SECTION 11. Order of Trial. — The trial shall proceed in the following order: xxx (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. (i.e. self defense) Rule 118, SECTION in Criminal Cases. — xxx

1. Pre-trial; Mandatory

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and A trial can be postponed. But if it is through oral motion, if you are the lawyer of the other party, you object. Rule 30, SECTION 4. Requisites of Motion to Postpone Trial for Illness of Party or Counsel. — A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. (5a, R22) RULE 33 Demurrer to Evidence SECTION 1. Demurrer to Evidence. — After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (1a, R35) -

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This is a Motion to Dismiss but differently named in order to avoid confusion with Rule 16. A motion to dismiss is filed even before an Answer is served but a Demurrer to evidence is filed after the plaintiff rests his case, meaning he is done with the presentation of his evidence. There is only one ground for demurrer to evidence. In the civil case, do not use insufficiency of evidence. Instead, use: “Under the facts and the law the plaintiff is not entitled to the relief”. The phrase “insufficiency of evidence” is a ground for demurrer in a criminal case in Rule 119, SECTION 23. Demurrer to Evidence. — After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1)on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a)

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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. EHDCAI If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n) TRANSCRIPT 5 Demurrer to Evidence -

A form of a motion to dismiss but it is not the MTD in Rule 16. It is not also the MTD in Rule 17. The Demurrer to Evidence in Rule 33 is a motion filed after the plaintiff has rested his case which means that the plaintiff is already done with the presentation of his evidence. It is now for the defendant to present the evidence. But the defendant realized that there is no need to present evidence because he thinks that the plaintiff is not entitled to the relief as seen in law and in facts. The ground here is insufficiency of evidence but do not use these words. Simply use the wordings of the Rules: upon the facts and the law the plaintiff has shown no right to relief. In the criminal case the ground is very specific: insufficiency of evidence.

Does the defendant have to file a Demurrer to Evidence with leave of court? Not in a civil case. Let us now presume that defendant filed a Demurrer to Evidence. Demurrer to Evidence is just a more sophisticated name for an MTD. And so the DTE was granted by the court and the case is dismissed. The dismissal here is a final one. Thus, the plaintiff could appeal. Upon appeal, the dismissal was reversed. The higher court decided that the case should have not been dismissed. Is there any adverse implication against the defendant? Yes. The defendant can no longer present his evidence if the order of dismissal is reversed. The higher court will decide on the case on the basis of the evidence of the plaintiff. That is the effect of a DTE granted but reversed on appeal. Suppose the DTE was denied by the trial court, the case is not over. The defendant’s move is to present his evidence. There is no waiver. That is why it is very risky to file a DTE. If it was granted by the trial court and the case is dismissed, the plaintiff appeals and the case is reversed on appeal, the defendant can no longer present his evidence.

Dean Riano’s Lecture 2014

In the criminal case, even the court in its own initiative can dismiss the criminal case. In other words, after the prosecution has presented the evidence, the court can dismiss the criminal case on the ground of insufficiency of evidence. The court can motu proprio make its own demurrer to evidence in a criminal case. Before it makes its own demurrer, the court will give the prosecution the opportunity to be heard. That is not true in a civil case. The court does not make its own demurrer in the civil case. In a civil case, the DTE is filed by the defendant. In the criminal case, DTE may be done by the court in its own initiative or it may be done by the accused. When the accused files DTE in a criminal case, he can do it in 2 ways: 1.

2.

With leave of court - There is an advantage when the accused files a DTE with leave of court and it is denied he can still present his evidence. Without leave of court- But if he files a DTE without leave of court and it is denied, he waives his right to present his evidence.

A criminal case is unique in the sense that if you file a DTE, granted and the case is dismissed, it is not just a mere dismissal as it amounts to an ACQUITTAL. Thus, the prosecution cannot appeal because of the principle of Double Jeopardy. In the civil case, if it is granted, he can appeal. Let us suppose the case was not dismissed by the demurrer. So proceed with the trial then the judgment. Can there be a judgment even without a trial? Yes. JUDGMENT There are 2 concepts you have to remember in the judgment. What do you mean by a Final Judgment? The word final is used in two senses:  

That the trial is over and the court has made the decision It could already be subject to execution

The moment the court renders judgment and you are notified of that judgment, it does not mean that it is executory. It is only final. It becomes executory when the period for appeal lapses. The normal period for appeal is 15 days from notice of judgment or final order. There is another important concept called Entry of Judgment. Rule 36. Suppose you received the notice of judgment on April 1. You generally have 15 days to make a move – appeal or MR or MNT. On April 16, no move was made, the judgment became final and executory. The date it became final and executor is also the date of the entry of judgment.

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The entry of judgment is the physical act by which the Clerk of Court enters the dispositive portion of the judgment in the Book of Entries of Judgment and he signs and certifies that it has become final and executory. Suppose the Clerk of Court forgot to do it on that date and instead physically entered the judgment on April 20. Under the new rules, the entry of judgment is not April 20 but on April 16, the day the judgment actually became final and executory. Not yet asked in the bar. Another important concept: Separate Judgment. Several Judgment (se-vee-ral, nahati/naputol, hindi yung marami) Sec. 36, SECTION 4. Several Judgments. — In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or moreof them, leaving the action to proceed against the others. (4) -

This presupposes many defendants. But it is possible that the court can render judgment first on one of the defendants before it can decide on the others. It depends on the availability of evidence during the trial. Normally though, Philippine courts do not apply this.  normally, judges wait for all the evidence to come in.

SECTION 5. Separate Judgments. — When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (5a) -

This presupposes various claims: claim of plaintiff, claim of defendant, in a counterclaim, cross-claim, claim on third-party complaint. Possible not sabay-sabay i.e. pwede maunang i-resolve ang claim sa counterclaim then that of cross-claim.

These provisions authorized the courts to render several judgments or separate judgments when circumstances warrant. These are subject to the sound judicial discretion. The judgment cannot be an oral judgment. It must be in writing. The judgment must be personally prepared and signed by the judge. (Although in reality judges have legal researchers who prepare for it; but once the judge signs it, by legal fiction it is deemed as though personally prepared by the judge)

Dean Riano’s Lecture 2014

A judgment has been rendered. Let us assume the defendant loses the case or sometimes the plaintiff loses the case. Common sense tells us that you cannot immediately go to execution since the party who lost in the case would try to reverse the adverse judgment. REMEDIES AGAINST THE JUDGMENT -

A topic that is almost every year present in the bar. a.k.a. Post-Judgment Remedies 2 situations:

BEFORE JUDGMENT BECOMES FINAL EXECUTORY (within the period for appeal)  Motion for Reconsideration, R37  Motion for New Trial, R37  Appeal- R 40, 41, 42, 43, 45

AND

AFTER JUDGMENT BECOMES FINAL EXECUTORY (after the period of appeal has lapsed)  Annulment of Judgment- R47  Petition for Relief- R38  Certiorari – R65

AND

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"Sec. 9. Jurisdiction. — The Court of Appeals shall exercise: xxx "The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the Court of Appeals must be continuous and must be completed within three (3) months, unless extended by the Chief Justice." ||| (Amendment to B.P. Blg. 129 Re: Expansion of CA Jurisdiction, REPUBLIC ACT NO. 7902 [1995])

Before you appeal, MR or MNT are not requirements. However if you file an MR or MNT and that is denied, you can Appeal. But you can file an appeal even without a prior MR or prior MNT. RULE 37 New Trial or Reconsideration Refers to MR and MNT against the judgment of a trial court. Do you have MR in an appellate court, i.e. CA and SC? Yes. Rule 52 for CA. SECTION 1. Period for Filing. — A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15) days from notice thereof, with proof of service on the adverse party. Rule 56 for SC SECTION 2. Rules Applicable. — The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: xxx There is a Motion for Reconsideration from the judgment of the Supreme Court because that is your only remedy against the SC. You cannot appeal to a body higher than SC. You cannot appeal to God. Is there also an MNT against appellate court, i.e. CA? Yes. Rule 53 for CA. CA is an appellate court but you are given the chance to file a motion for new trial when CA is not a trial court because there are times when CA can receive evidence, conduct trials and even new trials to resolve factual issues. CA has unique power.

So you have New Trials in the trial court and CA. Do you have new trials in SC? No. Under the Rule 56, Rule 53 on New Trials that applies to CA does not apply to SC. In Rule 56, Sec 2 there is no reference to Sec. 53. The reason for this is because the SC is not a trier of facts. The general rule is SC caters to questions of law only. Rule 45 - appeal by certiorari to the SC. Petition for review on Certiorari, Rule 45 (Petition for certiorari, Rule 65) SECTION 1. Filing of Petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. Rule 37 mentions 2 remedies: MR and MNT When do you use MR? When do you use MNT? Depending upon the grounds available MNT grounds: 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 Illustration: Suppose nagrereklamo ka, natalo ka, sabi mo, “nadaya ako ng kabila kasi sabi nya di nako dadalo sa hearing kasi ididismiss daw nya yung kaso. Yun pala di totoo yun. Kaya natalo ako sa kaso coz i was not able to participate in the proceeding. I am a victim of fraud. I could file an MNT. 2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and

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produced at the trial, and which if presented would probably alter the result. Illustration: suppose after the trial and the judgment was rendered where you lost the case. 3 days after, you found evidence which with reasonable diligence was not found before. And if presented in the trial could have actually altered the results of the case. File MNT. Newly-discovered evidence is not a forgotten evidence. This is an evidence that was not available before and could not have been discovered with due diligence even during the trial but was only discovered after the trial.

denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. -

-

MR: grounds:   

the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law

Word of caution: the grounds for MR are errors of judgment; these are also grounds for appeal but the Rules give you a shorter route since MR is not as extensive as an appeal. The grounds for MNT are not errors of judgment; they are matters outside the trial that prevented you from fully participating in the proceedings. Within what period do you file MR/MNT? Within the period to appeal. 15 days from notice of judgment or final order; but sometimes it could be 30 days i.e. in special proceedings appeal except habeas corpus which is 48 hours. Also in some special civil actions where there are several stages of judgment they are subject to multiple appeals. For instance, in expropriation proceedings, the first judgment is on WON plaintiff gov’t agency has the right to expropriate; that is appealable. The 2nd judgment is on the compensation; that is appealable. The period to appeal here is 30 days because the judgments are subject to multiple appeals. Multiple appeals does not mean many people appealing. It means a case with several stages of judgment, each stage is subject to appeal. Illustration: D received a notice of judgment on April 1, meaning he has up to April 16 to file MR/MNT/Appeal. He decided to file MR. On the 10th day he filed an MR. The MR was denied on May 5. The notice of denial was received by him on May 15. Can D appeal from the order of denial of my MR? No. D can appeal but will appeal from the judgment and not from the order of denial. Ang judgment ang i-appeal mo not the order of denial. Rule 37, SECTION 9. Remedy Against Order Denying a Motion for New Trial or Reconsideration. — An order

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-

So, if it is denied, you cannot appeal from the order of the denial of MR. Can you file a Petition for certiorari against the order of denial? Before December 2007, Yes. After December 2007, no more, the Rules have been amended. So, your remedy for the denial of MR/MNT is to appeal from the judgment itself. So in the illustration, you received the notice of denial on May 15. Do you have only 5 days more to file a notice of appeal? No. You have a fresh period of 15 days. Neypes v. CA on September 14, 2005. SC said that the period of appeal is not only 15 days from notice of judgment but also 15 days from notice of final order. If you did not file an MR/MNT, your period of appeal is from notice of judgment. But if you filed an MR/MNT and it is denied, that denial is a final order. When you received that order it is notice of final order. And the period for appeal is not only 15 days from notice of judgment but also 15 days from notice of final order.

Rule 41, SECTION 3. Period of Ordinary Appeal. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (n) Neypes Rule is a civil case. SC said that it applies to all civil cases: Rule 40, 41, 42, 43, and 45. ** The right to appeal is not a constitutional, natural or inherent right — it is a statutory privilege and of statutory origin and, therefore, available only if granted or as provided by statutes. It may be exercised only in the manner prescribed by the provisions of the law. 14 The period to appeal is specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129), 15 as amended, Section 3 of Rule 41 of the 1997 Rules of Civil Procedure, and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure. Section 39 of BP 129, as amended, provides: SEC. 39. Appeals. — The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from: Provided, however, That in habeas corpus cases, the period for

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appeal shall be forty-eight (48) hours from the notice of the judgment appealed from. Section 3, Rule 41 of the 1997 Rules of Civil Procedure states: CAIaHS SEC. 3. Period of ordinary appeal. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Section 6, Rule 122 of the Revised Rules of Criminal Procedure reads: SEC. 6. When appeal to be taken. — An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run. In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within which to appeal. The Court categorically set a fresh period of 15 days from a denial of a motion for reconsideration within which to appeal, thus: The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more. To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion

for a new trial reconsideration.

or

motion

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for

Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. The Court also reiterated its ruling that it is the denial of the motion for reconsideration that constituted the final order which finally disposed of the issues involved in the case. The raison d'être for the "fresh period rule" is to standardize the appeal period provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. Thus, the 15-day period to appeal is no longer interrupted by the filing of a motion for new trial or motion for reconsideration; litigants today need not concern themselves with counting the balance of the 15-day period to appeal since the 15-day period is now counted from receipt of the order dismissing a motion for new trial or motion for reconsideration or any final order or resolution. While Neypes involved the period to appeal in civil cases, the Court's pronouncement of a "fresh period" to appeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons: First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that "[t]he period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from." Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction. Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned — the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation

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that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed.

2005, the date of receipt of notice denying her motion for new trial. CDTSEI

Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure, thus:

||| (Yu v. Samson-Tatad, G.R. No. 170979, February 09, 2011) By the way, the MR can only be filed by the same party once. An MNT could be filed 2x as long as the ground for the 2 nd MNT was not available when the first MNT was filed. But an MR can only be filed once even if on appeal. But this rule on appeal is not an absolute rule because the SC can entertain even 2 or 3 MRs. Reason: SC has the power to suspend a rule depending on the merits of the case.

SEC. 3. How appeal taken. — . . . (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

APPEAL -

How can appeal be used in a bar exam? Well, in a very simple way. It can ask you the remedies. So you have to go on the basic rules on appeal.

xxx xxx xxx (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorariunder Rule 45. Clearly, if the modes of appeal to the CA (in cases where the RTC exercised its appellate jurisdiction) and to this Court in civil and criminal cases are the same, no cogent reason exists why the periods to appeal from the RTC (in the exercise of its original jurisdiction) to the CA in civil and criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure should be treated differently.

RULE 41, SECTION 1. Subject of Appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. cIDHSC No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) 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;

Were we to strictly interpret the "fresh period rule" in Neypes and make it applicable only to the period to appeal in civil cases, we shall effectively foster and encourage an absurd situation where a litigant in a civil case will have a better right to appeal than an accused in a criminal case — a situation that gives undue favor to civil litigants and unjustly discriminates against the accused-appellants. It suggests a double standard of treatment when we favor a situation where property interests are at stake, as against a situation where liberty stands to be prejudiced. We must emphatically reject this double and unequal standard for being contrary to reason. Over time, courts have recognized with almost pedantic adherence that what is contrary to reason is not allowed in law — Quod est inconveniens, aut contra rationem non permissum est in lege. 18 Thus, we agree with the OSG's view that if a delay in the filing of an appeal may be excused on grounds of substantial justice in civil actions, with more reason should the same treatment be accorded to the accused in seeking the review on appeal of a criminal case where no less than the liberty of the accused is at stake. The concern and the protection we must extend to matters of liberty cannot be overstated. In light of these legal realities, we hold that the petitioner seasonably filed her notice of appeal on November 16, 2005, within the fresh period of 15 days, counted from November 3,

A statutory right only. Not a natural nor a constitutional right.

(e) An order of execution; (f) 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 (g) An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. -

You have to remember those matters that cannot be appealed.  So if you cannot appeal, the remedy is Rule 65: certiorari, prohibition and mandamus.

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-

If the judgment or final order is appealable, DO NOT USE Rule 65. The remedy is appeal But if not appealable, you can use Rule 65 Those enumerated from a – g, not appealable, thus the remedy is Rule 65. Illustrations: 1. A judgment became final and executory. The winning party files a motion for the issuance of a writ of execution. But the court denied it without valid reason. Is that order of denial appealable? No. There is no rule which provides for its appeal. Therefore, use Rule 65. Mandamus, because execution becomes a matter of right the moment the judgment becomes final and executory. 2.

3.

The judgment has not become final and executory. But the court ordered the execution of that judgment. Can you appeal from its order? Sec. 1 of Rule 41. (e) An order of execution; x x x So, go to Rule 65. Certiorari and/or Prohibition I filed a complaint but I forgot according to the court to include the certification against forum shopping. Upon motion, the court dismissed my complaint. I said, there was substantial compliance because my certification was incorporated in the paragraphs of my complaint. The court disagreed. So my case was dismissed. Is my remedy an appeal or Rule 65? You have to ask: Is the dismissal with prejudice or not? Refer to Sec. 5 of Rule 7: x x x Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any ofthe undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

An order dismissing a case without prejudice is not appealable. Thus, the remedy is Rule 65. 4.

A complaint was filed in RTC. I filed a MTD on the ground of improper venue. The court denied. I filed an MR but also denied. Can I appeal from that denial or Rule 65?

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Certiorari. The order of the court is not a final order but only an interlocutory order which does not give an end to the case. You may also add Prohibition. 5.

The case was filed in RTC. I filed MTD on the ground of improper venue. It was dismissed. The plaintiff did not agree with the dismissal. What is the remedy of the plaintiff? Let me guide you, the dismissal on improper venue without prejudice. The remedy is Rule 65.

6.

Suppose the plaintiff’s case was dismissed on the ground of lack of jurisdiction. Can Plaintiff re-file it? Yes. Thus, the dismissal was without prejudice. Thus the remedy is certiorari.

N.B. Pag na-dismiss yung kaso at pwede pang i-refile, without prejudice ang dismissal. Kung di ka sumasang-ayon sa hukuman, i-certiorari mo sya, hindi appeal. 7.

I filed MTD on a case on the ground of res judicata. The case was dismissed. Plaintiff did not agree on that ground. Plaintiff’s remedy is appeal because the dismissal here is with prejudice as re-filing is precluded. Rule 16. SECTION 5. Effect of Dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof shall bar the refiling of the same action or claim.

8.

Plaintiff’s case was dismissed due to his non-appearance during pre-trial. What’s the remedy? Rule 18, SECTION 5. Effect of Failure to Appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissalof the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof So the remedy is to Appeal.

9.

During the pre-trial, the parties agreed for an amicable settlement. They submitted their amicable settlement to the court. So the court rendered a judgment on the compromise. But one party said that he agreed to the compromise because he was a

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victim of intimidation. So he filed a motion to set aside the judgment on the compromise on the ground that he was intimidated only. It was denied. What’s his remedy? Rule 65. 10. I filed a petition for relief. Denied. I don’t agree with the court. Remedy? Rule 65.

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petition for review on certiorari under Rule 45 and I go directly to the SC.

But the more difficult one there is yung with prejudice or yung without prejudice. Kaya if nabasa nyo sa Rules adjudication on the merits- that means with prejudice na ha. Ang mantra mo ay easy lang:

c.

Suppose that from the original jurisdiction of RTC you want to raise questions of facts only, you go to CA under Rule 41.

d.

Suppose you want to raise mix questions of fact and law, still to the CA under Rule 41.

e.

Suppose you want to raise only questions of law, do not use Rule 41, instead go to Rule 45 to SC.

With prejudice – appeal Without prejudice – Rule 65. 11. My case was dismissed against Mr. X because my case was unenforceable under the Statute of Frauds. Remedy? Appeal because if a case was dismissed based on a statute of frauds you cannot re-file it. So, appeal. It is part of Sec. 5 of Rule 16. In the modes of appeal, you don’t need to memorize all the provisions. Just look at the way the mode of appeal has been done. FROM MTC TO RTC Illustration: 1. You came from MTC, you lost the case. How do you appeal? Appeal to RTC which has jurisdiction over MTC. File a Notice of Appeal. File it in the MTC. Pay the appellate docket fee to the MTC then the MTC Clerk of Court will forward it to the RTC including all the records. 3.

When is the judgment of MTC appealable to CA and not RTC? When MTC exercises its delegated jurisdiction in cadastral cases, it is an RTC in soul and spirit; it is acting as an RTC ^_^ (huwag nyong gamitin sa bar ang soul and spirit)

FROM RTC RTC exercises 2 types of jurisdiction: 1. 2.

Original : when the case is first filed to it Appellate: when it decides on a case originated from MTC then appealed to it

Illustration: a.

b.

The case was an action for a specific performance. Which court has jurisdiction? RTC. Now, RTC decides on the case and I lost. How do I Appeal? Use Rule 41. Just like in the MTC, I am going to file a notice of appeal to RTC. I will pay appellate docket fees also in RTC. That is how to appeal when in the exercise of original jurisdiction. But when the appeal is only on a pure question of law from the judgment of RTC exercising original jurisdiction, I don’t file notice of appeal. I file a

RTC TO CA Illustration: 1. You lost in MTC then you appealed to RTC. Then you lost again in the RTC exercising its appellate jurisdiction. You want to appeal now to the CA. Mode of Appeal here is Petition for Review under Rule 42. Bayad mo sa CA. 2. You lost in MTC then you appealed to RTC. Then you lost again in the RTC exercising its appellate jurisdiction. Now, you just want to raise pure questions of law. Where do you go to? Not in SC. Dun ka pa rin sa Rule 42. Therefore, CA can also deal with pure questions of law provided that the judgment of the RTC is in the exercise of its appellate jurisdiction. But when judgment of the RTC is in the exercise of its original jurisdiction, you want to raise pure questions of law, you go to SC.

CA -CA does have original jurisdiction: Annulment of Judgment -how to appeal when CA renders judgment? Rule 45 to SC, questions of law only. Do not raise issues of grave abuse of discretion as that is for Rule 65. -now, if you came from Sandiganbayan, you also go to SC, not CA. Use Rule 45Questions of Law. If you use Rule 65 it is not on questions of law but on Jurisdiction based on grave abuse of discretion amounting to lack or excess of jurisdiction. Sometimes in Rule 45, SC can deal with questions of fact. One of the exceptions is if the findings of facts of RTC is not the same with the findings of facts of CA. So SC determines which is accurate. But are there specific rules where a person is authorized to go to SC on question of facts? Yes. There are exceptional rules. For instance, in a Petition for writ of amparo. Petition for writ of habeas data. Writ of Kalikasan. THE RULE ON THE WRIT OF AMPARO

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SECTION 19. Appeal. — Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases

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Petition for Certiorari, a special civil action (like filing a new action) To the SC under Rule 64 in re Rule 65.

On the other hand, there is a Mode of appeal from CSC to the CA.

THE RULE ON THE WRIT OF HABEAS DATA SECTION 19. Appeal. — Any party may appeal from the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) work days from the date of notice of the judgment or final order. The appeal shall be given the same priority as habeas corpus and amparo cases.

Writ of Kalikasan, Rule 7, SECTION 16.Appeal. — Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact.

The word CTA in Rule 43 is misplaced. RA 9282, CTA now has an equal rank as that of CA. You do not appeal to a court of equal rank. This is what you do in CTA. The CTA has divisions. The judgment by division will be elevated to CTA en banc. Then from en banc you can go to SC under Rule 45. It’s like the CA to SC. Rule 45, SECTION 9. Rule Applicable to Both Civil and Criminal Cases. — The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (n) -

-

In other words, Rule 45 also applies to criminal cases. There is only one mode of appeal to the SC as a general rule. There is only one instance when you go to SC by filing a notice of appeal to the CA. Rule 124, RULE 122

Ito ang mga exceptions sa general rule sa Rule 45 na only questions of law. Now you come from administrative bodies or from quasijudicial bodies. Is there a mode of appeal therefrom? I am talking about those bodies and agencies enumerated in Rule 43. Need not memorize those or else suffer in mental constipation @.@ Where do you go? CA. This appeal on Rule 43 is called Petition for Review under Rule 43.

Appeal SECTION 3. How Appeal Taken. —

Rule 41, RTC original to CA (no pure question of law)

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

Rule 42, RTC appellate to CA

xxx

Rule 65, questions on jurisdiction.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is death, reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section

Rule 40, MTC to RTC

Illustration: Nag-final ka nag administrative case sa Office of the President. Talo ka dun. Rule 43 to CA. Talo ka sa CA. Punta ka SC under Rule 45 only on questions of law. Talo ka sa SC, ano remedy? MR under Rule 52 in re Rule 56. How many times can you file MR? Only once. Sec. 2 of Rule 52. If MR is directed against judgment, only once. If MR is directed against interlocutory order, as many times as the judge allows.

Galing ka sa CSC. Talo ka there. Where to go? To the CA under Rule 43. CSC is an independent constitutional institution together with COMELEC and COA. What is the mode of appeal from the judgment of COMELEC and COA? There is no mode of appeal but only a mode of review called

||| (Revised Rules of Criminal Procedure, A.M. No. 00-5-03-SC [2000])

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From NLRC, is there a mode of appeal? None. But there is a mode of review. Go to CA by Rule 65 – not a mode of appeal. 1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; REGLEMENTARY PERIOD; SIXTY DAYS DESPITE LAPSE OF THE 10-DAY PERIOD FOR FINALITY OF THE DECISION OF THE NLRC. — . . . the remedy of the aggrieved party is to timely file a motion for reconsideration as a precondition for any further or subsequent remedy, and then seasonably avail of the special civil action of certiorari under Rule 65, for which said Rule has now fixed the reglementary period of sixty days from notice of the decision. Curiously, although the 10-day period for finality of the decision of the NLRC may already have lapsed as contemplated in Section 223 of the Labor Code, it has been held that this Court may still take cognizance of the petition for certiorari on jurisdictional and due process considerations if filed within the reglementary period under Rule 65. 2. ID.; ID.; ID.; MODE OF JUDICIAL REVIEW OVER DECISIONS OF THE NLRC. — Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should henceforth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. ||| (St. Martin Home v. NLRC, G.R. No. 130866, September 16, 1998) From the Office of the Ombudsman. There are 2 kinds of cases handled by the Ombudsman. Administrative/Disciplinary cases and Criminal cases. If you lose in the Ombudsman in the administrative case, go to the CA by Rule 43. If you lose in the Ombudsman in the criminal case, go to the SC by Rule 65.

1. ADMINISTRATIVE LAW; SECTION 27 OF R.A. 6770; OMBUDSMAN ACT OF 1989. — We will merely observe and lay down the rule at this juncture that Section 27 of Republic Act No. 6770 is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action. EScHDA 2. ID.; ADMINISTRATIVE LIABILITY OF PUBLIC OFFICIAL FALLS UNDER THE JURISDICTION OF BOTH THE CIVIL SERVICE COMMISSION AND THE OFFICE OF THE OMBUDSMAN; CASE AT BAR. — After respondents' separate comments had been filed, the Court was intrigued by the fact, which does not appear to have been seriously considered before, that the administrative liability of a public official could fall under the jurisdiction of both the Civil Service Commission and the Office of the Ombudsman. Thus, the offenses imputed to herein private respondent were

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based on both Section 19 ofRepublic Act No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the amendment of Section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by the Civil Service Commission in administrative disciplinary cases were made appealable to the Court of Appeals effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this Court. It could thus be possible that in the same administrative case involving two respondents, the proceedings against one could eventually have been elevated to the Court of Appeals, while the other may have found its way to the Ombudsman from which it is sought to be brought to this Court. Yet systematic and efficient case management would dictate the consolidation of those cases in the Court of Appeals, both for expediency and to avoid possible conflicting decisions. 3. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; RULE THAT A CHALLENGE ON CONSTITUTIONAL GROUNDS MUST BE RAISED BY A PARTY TO THE CASE; NOT AN INFLEXIBLE RULE. — Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advise and consent," and that Republic Act No. 6770, with its challenged Section 27, took effect on November 17, 1989, obviously in spite of that constitutional prohibition. The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain. Since the constitution is intended for the observance of the judiciary and other departments of the government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or countenance evasions thereof. When it is clear that a statute transgresses the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the statute, governs in a case before them for judgment. 4. ID.; ID.; ID.; THE COURT EX MERO MOTU MAY TAKE COGNIZANCE OF LACK OF JURISDICTION AT ANY POINT IN THE CASE WHERE THE FACT IS DEVELOPED. — While courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute. Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on the court's own motion. The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is developed. The court has a clearly recognized right to determine its own jurisdiction in any proceeding. HCEcaT

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5. ID.; ID.; ID.; SECTION 27 OF R.A. No. 6770 SPECIFIES THAT APPELLATE JURISDICTION OF THE SUPREME COURT IS TO BE EXERCISED OVER "FINAL JUDGMENTS AND ORDERS OF LOWER COURTS," COMPOSING THE INTEGRATED JUDICIAL SYSTEM. — The very provision cited by petitioner specifies that the appellate jurisdiction of this Court contemplated therein is to be exercised over "final judgments and orders of lower courts," that is, the courts composing the integrated judicial system. It does not include the quasi-judicial bodies or agencies, hence whenever the legislature intends that the decisions or resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, as specific provision to that effect is included in the law creating that quasi-judicial agency and, for that matter, any special statutory court. No such provision on appellate procedure is required for the regular courts of the integrated judicial system because they are what are referred to and already provided for in Section 5, Article VIII of the Constitution. 6. ID.; ID.; APPEALS; THE REVISED RULES OF CIVIL PROCEDURE PRECLUDE APPEALS FROM QUASIJUDICIAL AGENCIES TO THE SUPREME COURT VIARULE 45. — Apropos to the foregoing, and as correctly observed by private respondent, the Revised Rules of Civil Procedure preclude appeals from quasi-judicial agencies to the Supreme Court via a petition for review on certiorari under Rule 45. This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court of Appeals, and had to be adopted in statutes creating and providing for appeals from certain administrative or quasi-judicial agencies, whenever the purpose was to restrict the scope of the appeal to questions of law. Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only from judgments and final orders of the courts enumerated in Section 1 thereof. Appeals from judgments and final orders of quasijudicial agencies are now required to be brought to the Court of Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies. EDATSI 7. ID.; ID.; JURISDICTION; JURISDICTION OF A COURT IS NOT A QUESTION OF ACQUIESCENCE BUT AN ISSUE OF CONFERMENT. — The submission that because this Court has taken cognizance of cases involving Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or "acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not a question of acquiescence as a matter of fact but an issue of conferment as a matter of law. Besides, we have already discussed the cases referred to, including the inaccuracies of some statements therein, and we have pointed out the instances when Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770 now under discussion, and when that provision would not apply if it is a judicial review under Rule 65. 8. ID.; ID.; ID.; THE SUPREME COURT CAN RULE ON MATTER SUA SPONTE WHEN ITS APPELLATE JURISDICTION IS INVOLVED. — Private respondent invokes the rule that courts generally avoid having to decide a

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constitutional question, especially when the case can be decided on other grounds. As a general proposition that is correct. Here, however, there is an actual case susceptible of judicial determination. Also, the constitutional question, at the instance of this Court, was raised by the proper parties, although there was even no need for that because the Court can rule on the matter sua spontewhen its appellate jurisdiction is involved. The constitutional question was timely raised, although it could even be raised any time likewise by reason of the jurisdictional issue confronting the Court. Finally, the resolution of the constitutional issue here is obviously necessary for the resolution of the present case. 9. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF LAWS; SECTION 27 OF R.A. 6770 VIOLATES THE CONSTITUTIONAL PROSCRIPTION AGAINST LAWS INCREASING THE APPELLATE JURISDICTION OF THE SUPREME COURT. — Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases theappellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court. IDScTE 10. REMEDIAL LAW; SUPREME COURT; RULES PRESCRIBED FOR THE PRACTICE AND PROCEDURE OF LOWER COURTS; TEST WHETHER PROCEDURAL OR SUBSTANTIVE. — It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. It is admitted that what is procedural and what is substantive is frequently a question of great difficulty. It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system. In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether therule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 11. ID.; CASE AT BAR. — In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now

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be vested with exclusive appellate jurisdiction thereover, relates to procedure only. This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy. Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the Court of Appeals can be sustained. EaHIDC ||| (Fabian v. Desierto, G.R. No. 129742, September 16, 1998)

Talo ka sa CA from RTC. Pwede ka bang mag-raise questions of facts and/or mixed questions on facts of law to SC? NO. Questions of law only under Rule 45. Nag-file ako ng petition for a writ of amparo sa RTC. Talo ako. Saan mo iaappeal? Sa SC ka pupunta, yun ang sabi ng Sec. 19. Can I raise question of facts? Yes. Mga exception yan. Same with habeas data and writ of kalikasan. Mula sa CTA division - CTA en banc – SC Rule 45 only questions of law. All your remedies have been exhausted and you still lost the case. Do not commit suicide. Life has to go on, ok? The winning party is now going to reap the fruits of his patience ^_^ Why does Rule 39 say execution and satisfaction of judgments? Why not only execution? Kasi a judgment may be satisfied even without execution ^_^ even without a writ of execution, sometimes the losing party is gentleman enough to voluntary comply with the judgment. There was a 2002 suggested question: is it possible that the parties can still enter into compromise even if there is a judgment already? Yes. That’s not contrary to law or morals. There is no law prohibiting it. Can the court motu proprio issue a writ of execution? RULE 39, SECTION 1. Execution Upon Judgments or Final Orders. — Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. (1a)

From Ombudsman, disciplinary case, go to CA under Rule 43. Then go to SC under Rule 45.

Practice tayo: From MTC talo ako, punta sa? RTC, Rule 40 From MTC talo ako, punta sa RTC but natalo utli, punta sa? CA Rule 42 Eh kung pure question of law sa SC? Rule 42 pa rin kasi in the exercise of appellate jurisdiction. MTC – RTC R40 RTC – CA R42 CA- SC R45 Pag pumunta ka sa SC, Rule 45 yan! Galing ka sa MTC, talo ka sa mtc, magfafile ka ng appeal sa RTC? Paano? Notice of Appeal to MTC, pay the fees to MTC still.

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If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. (n) -

The rule is a motion on execution is not supposed to be filed before the judgment becomes final and executory. During the pendency of the appeal, you shouldn’t file the motion.

Is it possible to have the judgment executed executed pending appeal? Yes. That concept is the so-called Discretionary Executions. SECTION 2. Discretionary Execution. —

Talo ka sa RTC, anong questions pwede ma-raised papuntang CA? Questions of facts, mixed questions of facts and laws, questions of law (pwede kasi appellate eh)

(a) Execution of a judgment or final order pending appeal. — On motion of the prevailing party with notice to the adverse party filed in the trial courtwhile it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in

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its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (b) Execution of several, separate or partial judgments. — A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (2a) SECTION 3. Stay of Discretionary Execution. — Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. (3a)

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Execution here is not a matter of right but a matter of discretion by the court. But when the judgment has become final and executory, execution becomes a matter of right.

Discretionary executions must be founded on good reasons stated on the order of the court. The rules do not mention these good reasons as it is for the judge to determine such. Examples: one case involving national marketing corporation. Subject matter was canned goods. Loser party timely appealed. Winner examined the canned goods and discovered that they were about to expire. So useless na. So winner filed motion for execution pending appeal. That is a good reason. Is the giving of the bond by the winner a good reason in itself to justify discretionary execution? No. The bond is only an additional reason. There must be another good reason aside from the bond. Is the impending insolvency of the loser a good reason for execution pending appeal? Yes. By the way, there are judgments that are immediately executory upon rendition. You can file the (so still have to file) motion without waiting for the 15-day period to lapse. SECTION 4. Judgments Not Stayed by Appeal. — Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order

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suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. -

The support here is the main action for support and not the support pendente lite. Support pendente lite is a provisional remedy.

Is there any other judgment immediately executory? Rule 70, Forcible Entry and Unlawful Detainer SECTION 19. Immediate Execution of Judgment; How to Stay Same. — If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, 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. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is appealed. All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. (8a) -

That means the judgment against the plaintiff is not immediately executory.

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Now, how do you prevent the execution of the FD/UD judgment?Immediately perfect an appeal and post a supersedeas bond.

How do you have the judgment are executed? By the way, not all of the provisions in Rule 39 are for you. Some of them are for the sheriff. SECTION 6. Execution by Motion or by Independent Action. — A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. (6a) Two ways by which the judgment is executed? -

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1. By motion 5 years from the entry of judgment (date of finality of the judgment) 2. By action to revive the judgment After 5 years Hasn’t been asked in the bar! An action different from the original action. When the judgment is revived it can be executed again by motion within 5 years from the entry of that revived judgment. After 5 years, you cannot have it executed by motion, you file another action to revive the judgment. An action to revive the judgment may not be filed in the same court which rendered the judgment because the revived judgment has a cause of action different from the original case. Illustration: if the original action is an action to collect a sum of money of P300K, that is cognizable by MTC. The 5-year period lapsed, you file an action to revive the judgment and you cannot file that in MTC anymore, because the action to revive the judgment is by itself an action incapable of pecuniary estimation so you go to RTC. The venue may even change as the parties may change residences.

Now there is one important concept in SECTION 9. Execution of Judgments for Money, How Enforced. — (a) Immediate Payment on Demand. — The officer shall enforce an execution of a judgment for money be demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver

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the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. (b) Satisfaction by Levy. — If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, it any, and then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effects as under a writ of attachment. (c) Garnishment of Debts and Credits. — The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court.

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In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgment obligee.

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;

The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee. (8a, 15a) cdtai

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos;

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(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

It can be summarized: the sheriff will go to you with a writ of execution. He will ask you the amount and the lawful fees. You have no cash. Sheriff will ask if you have a check. Remember, the check here could be used in satisfying the judgment. This is different from commercial law that you cannot be compelled to accept a check as payment of the obligation. The rule here is different because this is not an obligation so the sheriff is compelled to accept that check. So wala kang cash nor check, merong properties? Personal properties ang uunahin. If insufficient, pupunta sa real properties. Section 10(c) Delivery or Restitution of Real Property. — The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. An action for reconvenyance or in relation to FE/UD. Sheryl lost in the case of unlawful detainer. The sheriff has a writ of execution. Can the sheriff let her immediately vacate? No. She will be given 3 working days. If afterwards, she hasn’t vacated, can the sheriff file contempt proceedings against her? No. This will not be executed by contempt. The sheriff instead will have to ask the aid of peace officers to let her vacate. Contempt is not a remedy here. TRANSCRIPT 6

Rule 39, SECTION 13. Property Exempt from Execution. — Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

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(f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use ofwhich he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempted by law. But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (12a) -

all those enumerated are exempt from execution. The sheriff cannot get them from you. But take note of the last paragraph as that would be the instance when the properties can no longer be considered exempt. Under the last paragraph it’s no longer execution. If they are going to be recovered because of a foreclosure of mortgage or because they are the subject of a sale, that is not an execution anymore.

Another important topic is Rule 39, SECTION 16. Proceedings Where Property Claimed by Third Person. — If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand ofthe officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the

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property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. (17a) Illustration: X v. Y. Y lost in the case. It is the property of Y which should answer for the execution. But the sheriff is getting a property of Z. That cannot be done. So the remedy of Z, not a party to the action, is to file a third-party claim. Not a third-party complaint which is a pleading. The SC calls that claim “Terceria”. The third person whose property is taken by sheriff can execute the affidavit. That affidavit is an affidavit of his title or right to the property. He gives a copy to the sheriff, and to the creditor. The sheriff would not get that property na. The moment the sheriff receives the affidavit, that is terceria, representing a third party claim. But the winning party can defeat the terceria and ask the sheriff to continue levying the property if the winning party posts a bond. The third person can file a case in order to protect his right. He could file a case against the sheriff. Example: injunction with damages against the sheriff. Suppose the Manila court issues the writ of execution; the sheriff and the third party are from QC; and this is a personal action. So third party can file an injunction in QC court. Now suppose QC Court issue an injunction order against the sheriff. Is the QC court interfering with the power of Manila Court? No. Because that injunction is not directed against Manila court but against the person of the sheriff and the sheriff is not the court. Now, let’s say the property has been taken by the sheriff to answer for the judgment and it has been sold on execution sale. There is a right of redemption within one year from the registration of the sale (Sec. 28). Suppose that property is one that earns income. Within the period of redemption, who has

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the right to the income i.e. rentals, is it the owner or is it the purchaser? Owner = judgment obligor Answer: Rule 39, SECTION 32. Rents, Earnings and Income of Property Pending Redemption. — The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. (34a) What if the sheriff does not find any property of the losing party, what is the remedy of the winner? Winner may apply for an order in the court and the court will order the losing party to appear before the court so that he will be asked questions about the whereabouts of his property. SECTION 36. Examination of Judgment Obligor When Judgment Unsatisfied. — When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. (38a) -

the court can order him to appear so that he will be examined as to where his properties are, about his income.

What are the priorities of Rule 39? Sec. 2 and 6. ^_^ PROVISIONAL REMEDIES Provisional, because they are not permanent remedies. These are remedies you availed of in the meantime the main action is not yet over, not yet been decided by the courts. What is that prov rem to secure the satisfaction of the judgment? Preliminary attachment. What is the effect if you do not avail of this preliminary attachment? Illustration: You sued the defendant for damages. You won the case. Under execution, the sheriff is going to ask the loser the amount the judgment. Sheriff found no property since defendant disposed of it na. You won but you have an empty victory. So how do you prevent this? When you file a complaint, avail also of preliminary attachment to put the property under custodial legis, under the custody of the court, so that he cannot dispose of it anymore.

Dean Riano’s Lecture 2014

When you study Rule 57, look very carefully at those provisions constantly asked, i.e. Sec. 1 and some parts of Sec. 5. Although Sec. 2 and 3 could be potential questions. You cannot ask for a writ of preliminary attachment in all cases. The only cases where you can ask for a writ of preliminary attachment would be those in section 1. RULE 57

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Preliminary Attachment SECTION 1. Grounds Upon Which Attachment May Issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money 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;

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(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;

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(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;

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(d) In an action against a party who has been guilty of a 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 creditors; or (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. (1a) -

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By the way, you can avail also of the writ of preliminary action in order to convert the action in personam into an action quasi-in rem where the defendant is a non-resident and is outside the Philippines. Sample questions: I sued X for damages. And in my allegations, I was asking for moral damages. I said that X is about to leave the Philippines with intent to defraud me. Based on this, will the court grant my writ of attachment? No. Because you cannot ask for a writ of prelim attachment where the damages you are recovering are only moral and exemplary damages. Can you ask for a writ of prelim attachment in all actions in the recovery of sum of money? No. The mere action is

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not a ground for a writ of prelim attachment. In letter (a), if you are going to ask for that writ and you are recovering damages and sum of money, you have to specify the amount which you cannot do in a moral and exemplary damages as they are dependent on judicial discretion. Suppose you specify the amount of money you are trying to recover, you must specifically allege that the defendant (a) intended to depart from the Philippines with (b) intent to defraud. Or you allege those in the subsequent letters in that provision. X filed an action to collect sum of money against D. X alleged that D is on the verge of insolvency. X is now asking for a writ of preliminary attachment. Court granted. Is the court correct? No. Insolvency is not a ground for the issuance of the writ of preliminary attachment. Be careful of these grounds! C sued D for a sum of money. C alleged in his complaint that D is about to depart from the Philippines. On that basis, can the court grant it? No. The allegations were incomplete. It must be shown that his departure was with intent to defraud him. Suppose, D borrowed P10M from B. D gave TCT as a collateral. B found out that the TCT was a fraud. B sued me for a sum of money. Can B successfully apply for the writ of prelim attachment? Yes. (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; I am the treasurer of the corporation. I embezzled the money of the corporation. It filed against me for the recovery of the money embezzled and applied for writ of attachment. I countered in saying that there is no showing that I am concealing and removing my property. Is my defense against the application for the writ, valid? No. With respect to money or property embezzled, it is enough that it is alleged that you are holding a fiduciary position. It is not necessary to allege that you are concealing the property.

Could a writ of preliminary attachment be issued without a hearing, meaning ex parte? Yes. SECTION 2. Issuance and Contents of Order. — An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. (2a) -

Because if you notify him of the application for the writ, he would immediately conceal his property. That’s why the Rules allowed ex parte application.

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And you notice that the writ of prelim attachment can be applied for at the commencement of the action. Kung isabay mo sa pag-file ng action ang pag-apply ng writ of prelim attachment, wala pang summons yan sa defendant. Ang effect yan ay ex parte talaga yan. Pero hindi mo ma-enforce or execute ang writ of attachment if no prior or contemporaneous service of summons. Kasi how can you make it effective upon a person who is not yet in the jurisdiction of the court? So issuance does not jurisdiction over the defendant. But the implementation of it requires that the court should have jurisdiction over the person of the defendant. When you apply for the writ of prelim attachment you should post a bond. The Attachment Bond. If defendant ka, yung properties mo ang inattach, papaano mo madidischarge yung attachment? File a counter-bond. Mawawala ang writ of attachment. Eh, papaano kung walang counter-bond? Section 13. Sasabihin mo na yung application nya is not one of those cases where attachment is allowed. Or say na his bond is not sufficient. Yung counterbond para yun sa mga can afford. Sa mga can’t afford, utak ang gagamitin.

Injunction is a main action. Preliminary injunction is a provisional remedy. There are 2 kinds of preliminary injunction: preliminary, mandatory Illustration: I sued X because by stealth and strategy he occupied my house. Forcible Entry. What is my remedy to have possession of the house even before the FE case has been finally decided by the court? Avail of a prov rem. Rule 70, SECTION 15. Preliminary Injunction. — The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (3a) I filed a petition for certiorari against RTC in order to interrupt the RTC from proceeding below while the petition for certiorari is pending in CTA, what is my remedy? Rule 65, SECTION 7. Expediting Proceedings; Injunctive Relief. — The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or

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upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. By the way, a writ of preliminary injunction cannot be issued without a hearing. Rule 58, SECTION 5. Preliminary Injunction Not Granted Without Notice; Exception. — No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear 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, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, and subject to the provisions of the preceding sections, 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 but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, 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 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. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. 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. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. (5a) But suppose there is a need to immediately prevent the act of a person and there is no time for hearing, avail of TRO. TRO is a prov rem within a prov rem. No hearing. Can be issued ex parte. Its normal decision is 20 days from its issuance. When it expires it cannot be extended. That is why the court must conduct a summary hearing within that 20-day period to

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determine whether it can be converted to preliminary injunction Is hte bond mandatory in the issuance of writ of preliminary injunction? NO. Rule 58, SECTION 4. Verified Application and Bond for Preliminary Injunction or Temporary Restraining Order. — A preliminary injunction or temporary restraining order may be granted only when: x x x (b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approvalof the requisite bond, a writ of preliminary injunction shall be issued. (4a) -

The phrase “Unless exempted by the court,” means that the court in the exercise of its discretion may not actually require the posting of the bond.

If you want to prevent the property subject of litigation from being wasted and dissipated during pendency of the action. What remedy to avail? Receivership. There are two bonds needed here. A bond for the application of the receiver and another bond when the receiver takes his oath as a receiver. Actually, we call Provisional remedies: the battle of the bonds ^_^ But there is one provisional remedy to recover personal property for the meantime that the main action is not over. Replevin. Take note, you cannot ask for the replevin of the property that is already in custodia legis. It applies to a personal property capable of manual delivery. You cannot ask a replevin of real property. What is that prov rem where a bond is not required for its application? Support Pendente Lite. Are provisional remedies also available in criminal procedures? Yes. Rule 127. RULE 127 Provisional Remedies in Criminal Cases SECTION 1. Availability of Provisional Remedies. — The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. (1a) It is not enough that you say something in court you have to prove what you are asserting or alleging. EVIDENCE.

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What is evidence? Rule 128 Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. Implications:  You can only insist the rules of evidence on judicial proceedings. You cannot insist the rules of evidence as a matter of right on non-judicial proceedings, i.e. SEC, NLRC  Purpose of evidence is to ascertain the truth which is not necessarily the actual truth; only the legal truth. The truth depending upon the evidence. Evidence depends upon certain rules. c.f. Pp v. Amminudin; Pp v. Mengote; Admissibility of Evidence - Not all evidences are evidence. Dapat admissible. - The most important concept - Evidence is admissible when: RELEVANT and COMPETENT - Relevance is a matter of logic and common sense. When it has a relationship to the fact in issue. It must be responsive. - Competence is a matter of law and rule. When it is not excluded by law and rule. Sometimes, an evidence may be admitted for various purposes – the Doctrine of Multiple Admissibility Sometimes when you present an evidence you cannot immediately show its relevance and sometimes it would be excluded. So you offer it in evidence under the Doctrine of Conditional Admissibility. You say, Your Honor, later on I can show the relationship to the issue of this evidence, please admit this on the basis of the doctrine of conditional admissibility. Later on you were not able to show the relevance, the evidence will be stricken out of the records. Which is stronger? Positive or Negative Evidence? A positive evidence. An assertion is stronger than the denial There are concepts you need for MCQ. What is the jurisprudential name for the facts you should establish to prove. Factum Probandum. What is the means to prove the factum probandum? The factum probans. The evidence. There are only 3 major types of evidence: 1. Object 2. Documentary 3. Testimony The rule is everything you assert must be proven. You must have evidence. Except on three matters which need not be proven: 1. Judicial Notice – Rule 129 2. Judicial Admissions – Rule 129 3. Presumptions – Rule 131

Dean Riano’s Lecture 2014

There are matters which the court should not require evidence, i.e. matters of mandatory judicial notice. Illustration: Your honor, I saw the victim fell on the building. The other party said, “objection your honor, move to strike out the evidence because there is no showing that the law of gravity exist” @.@ You do not have to prove the laws of nature. It is a mandatory judicial notice. Section 1. Judicial notice, when mandatory. — A court shall 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 nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. But there are also matters subject to judicial notice but only discretionary Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) Can a court take judicial notice that Espana Boulevard near UST gets flooded when it rains? Yes. Common knowledge na. But the most critical part here is judicial admission. When is an admission judicial? Should it be in writing? No. Can it be oral? Yes. But it must be an admission in the same case. The phrase “same case” is critical. Illustration: P and D in the RTC Manila, Branch 51, Case No. 10127-14. Incidentally, they are also same litigants in RTC Manila, Branch 51, Case No. 10128-14. These are 2 different cases. A judicial admission was made in the first case. That is a judicial admission only in that case. You do not have to prove that admission in that case because it becomes automatic. If you want to present that admission in the other case, that is not a judicial admission. It is an Extra-judicial admission in relation to that other case. It is not a judicial admission, so you must offer them as evidence first before they become admitted in the other case. It’s not the same case. You cannot contradict a judicial admission. The only way to contradict is through Rule 129, Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) Palpable mistake- talagang obvious na nagkamali lang. No such admission was made – does not mean na hindi mo sinabi. That is a mere denial or negative evidence. It is not strong. “that is not what I meant, I was quoted out of context.”

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Types of evidence It is necessary for us to know whether an evidence is object or documentary because there are some rules of evidence which apply only to documentary evidence. Rule 130, Section 2. Documentary evidence. — Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. It could be any material not necessarily written paper Illustration: a pen. If offered to prove the length, size, shape, or weight of the pen, - object evidence If offered to prove what is written in the pen – documentary evidence. Illustration: N is the complainant in a sexual assault case. She was asked to point at the suspect. W was pointed. W is an object evidence. Identifying a person makes the person an object evidence. If the question is, “what did you see written on his chest, if any”. His chest becomes a documentary evidence. Bar 2006. Can a private document be offered as an object evidence? Yes. Depending on the purpose. Again, the importance of knowing between the object and documentary evidence is because there are some rules applicable to documentary evidence only. 1. 2. 3.

Best evidence Rule. Parol Evidence Rule Hearsay Evidence Rule - only on testimonial and documentary evidence

Possible Bar Exam Questions: Best Evidence Rule Rule 130, Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a)

Dean Riano’s Lecture 2014

Best evidence rule (BER) is the most misunderstood rule because the phrase “best evidence” does not actually mean most superior or highest form of evidence. It is a misnomer. It refers only to the quarrel between the original and the secondary evidence. It means that between the original and the secondary, the original is the best.  do not use best evidence rule if there is no documentary evidence involved. And even if there is a document involved but the question is not about the content, do not use BER because the document is not a documentary evidence but an object evidence. The subject of the inquiry must be the contents before you apply the BER. It is not enough that you have a document. If the question and answer do not involve documentary evidence, don’t use BER. If there’s a document, you must wait about to prove the contents of the writing. Illustration: Ace was arrested in a buy bust operation. The drugs were confiscated together with the money involved. During the trial, the prosecutor, to prove that Ace was involved in the illegal sale of illegal drugs, offered in evidence the photocopy of the bills confiscated from him in the buy-bust operation. Is the photocopy of the bills object or documentary evidence? To be documentary evidence, it is offered to prove what is written in the document. But obviously the bills were presented to prove that money was involved. It wasn’t documentary. It was object. If the objection was that it was not the best evidence. Would you sustain it? Or overrule it? Overrule. You don’t apply BER to an object evidence.

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present the original document. If you cannot present the original, you have the duty to explain to the court why you cannot do so, i.e. lost, destroyed, unavailable. Proving and justifying why you cannot produce the original– LAYING THE BASIS, for the presentation of the secondary evidence. What basis are you going to use? Look at Rule 130, Section 5. When original document is unavailable. — 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. (4a) Are you going to prove that an original exist? That it has been duly executed? Then you explain its loss, destruction or unavailability. You must emphasize that there was no bad faith! When you have shown all those matters, you have successfully laid the basis for the presentation of secondary evidence. But take not, when you present a secondary evidence you have to do it in the order mentioned in section 5. Start with the copy. Sans copy, then the recital of its contents. If not, testimony of witnesses. Do you notice something? Testimony of witness could be a secondary evidence where you cannot present the original. Testimonial evidence could take the place of the documentary evidence. Suppose you cannot present the original because the original is in the custody of the adverse party, what are the matters to show to lay the basis? The same. It exists, duly executed. And (this is very important) you must give reasonable notice. But despite notice, he was not able to present.

To remember Best Evidence Rule, ask 1. 2.

Is there a document involved? If there was, then apply. If none, don’t apply. What is the subject of the inquiry? If the contents, apply. If not, then don’t.

What is the consequence of the rule that if the focal point inquiry is the contents of the document, what is the rule? You show the original as it is the best evidence as compared to the secondary evidence. BER originated in England. We borrowed our Rules of Evidence from US, but US borrowed it from England. Once upon a time, there was a quarrel between 2 landowners. P was claiming the land from D. Not so big land though. D said “this is mine! I bought it from S. In fact, I have an evidence, the bill of sale.” The court said, “ok, during the next session, D bring the bill of sale”. Upon hearing, D said “I travelled 50 miles, along the way I passed through the forest, there were robbers, but you know what, i copied it religiously. I left the original in the home.” Court denied it, “You might have committed a mistake in copying it, so I need the original” that is the origin of the Best evidence rule  the original name of this is the Original Document Rule. If you look at BER, the rule is present the original. However, there are instances when you are not absolutely obligated to

Dean Riano’s Sample Exams of what he asked in his Final Exams. Whether or not you apply the Best Evidence Rule Formal offer of exhibits Exhibit 1 – photocopy of the deed of sale duly executed between the plaintiff and defendant. To prove that P actually met the D and they knew each other before, contrary to the claim of P that they never met before. Plaintiff objected that it was not the best evidence because it was not the original and that there was no laying of the basis for the presentation of the copy during the trial. would you sustain the objection? No. The BER does not apply here because the subject of the inquiry is not the contents of the document. So, in Best Evidence Rule, may documentary evidence ba? May tanong ba on its contents? Wala eh, eh di wag mong iapply. If meron, i-apply mo then present the original. If walang original, i-justify mo kung bakit mo di ma-present. Now if you can show the secondary evidence, what is it? Umpisa ka sa copy; if none then sa recital of contents; if none then testimony. Tapos!

Dean Riano’s Lecture 2014

TRANSCRIPT 7 In marital privileged information, the prohibition is not only during the marriage but also after the marriage. So even if naannulled na ang marriage, no divulging. When I divulged to my wife that I was the theft, J overheard me. Can she testify against me over my objection? Yes, she is not my spouse so the prohibition does not apply.

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If this is civil case, if what is alleged is possession but the evidence pointed on ownership, objectionable. Possession is not ownership and ownership is not possession. So always look at the pleadings. Outside of it is objectionable Admission by Silence.

Lawyers cannot reveal the info given to him by the client. Even his secretaries, stenographers are prohibited. But the client can reveal it as he is the holder of the privilege. The prohibition is only against the lawyers and his employees.

Rule 130, Section 32. Admission by silence. — An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a)

Doctors, physicians and surgeons, the prohibition does not apply to a criminal case. It only applies in civil cases that would blacken the reputation of the patient. Sec. 24 only mentions civil cases.

Imagine a lady shouting at the door that I robbed her. If it weren’t true, my natural reaction would be to be angry. If I don’t react, that would be not natural consequence of innocence. My silence would be admissible in court as admission by silence.

One very important concept in Rule 130 is that concept that starts in Section 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) That section is the beginning of the rule of res inter alios acta. res inter alios acta- the first branch- is the combination of Sec. 26 and Sec. 28 Section 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. They have to be together  sec. 26 + sec. 28 is the statement of the res inter alios acta rule. Let’s rephrase it. Whatever I say/do are admissible against me but not admissible against the others, that’s sec. 28. Illustration: I was identified as one of the robbers through the CCTV. I was arrested and the media were there. Arnold Clavio of GMA said, what was your participation in the robbery? I replied in front of the media and not in court, I opened the safe. I was with X and Y. My statement was extrajudicial as it was not in court. The three of us were charged with robbery. The prosecution with leave of court presented the video where I implicated myself, x and y. The video was admissible against me. But not admissible against x and y. But you will panic if I will repeat that in court as a witness. It is no longer extrajudicial but already a judicial admission. That will be admissible against me and against them. The res inter alios inter acta rule applies only to extrajudicial statements! Objection is very important. Read first the complaint and information. Whatever statement not stated there is objectionable as it is a violation of the right to be informed of the nature of his case and cause of accusation.

There can be no admission by silence if the culprit is under custodial investigations since he would have the right to remain silent. Rule 130, Section 34. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a) -

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Similar acts as evidence is the 2nd branch of res inter alios acta This is no longer extrajudicial statement. Already judicial na. Use this as an objection because just because you were a convict before does not necessarily mean that you are the criminal in the present case. Also, just because you didn’t do it before, not necessarily mean you cannot do it now. Non sequitur – it does not follow Do not present prior criminal actions or convictions to prove current crime. Change the purpose as stated in Sec. 34. The specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like.

Rule 130, Section 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a) -

This is the Philippine version of the hearsay rule By the way, A witness testifies only as to facts. He has no business testifying on conclusions. It is the court which is supposed to make conclusions from the facts testified by the witness. There is only one kind of witness allowed to testify on conclusions – expert witness

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A witness must testify to those facts which he knows of his personal knowledge. Not on those facts of the knowledge of another person. Illustration: A murder case. Jose is the accused. The one who saw the killing was Pedro, the witness. Pedro revealed to Wilfredo what he saw. On the day Pedro was about to testify, he was riding a horseback going to court when an earthquake shook the horse to fall on the opening of the earth and burst. Pedro was never retrieved. Before he died he already told Wilfredo what he saw. Wilfredo is now in court and made the following statements: “Pedro revealed to me, it was Jose who shot the victim.” Before you conclude WON it is hearsay, you have to ask the purpose for which the statement was repeated in court. Wilfredo was asked why he was telling it in court. If Wilfredo says that he is saying it to prove that it was really Jose who killed the victim – hearsay. His evidence is not based on his personal knowledge. It was based on someone else’s who is not in court to be cross-examined. The truth of the statement cannot be tested by crossexamination. That failure to cross-examine makes it inadmissible. Hearsay – I heard and I said. Hear. Say. I did not see, I only heard. If Wilfredo was saying that it was to tell the court what he heard from Pedro. But he doesn’t know the truth – not a hearsay. Only to show what he heard; whether true or false, he does not care. And he has personal knowledge of what he heard but not the truth of it. If relevant, it becomes an Independent Relevant Statement. Whether it is hearsay or not depends on the purpose for which the outside declaration is presented in court. If you are repeating the statement of another who is not in the court, but your purpose is only to tell the court what he said, but not the truth of it – it is not hearsay. It becomes an independent relevant statement, if it is relevant. Or if the purpose is other than to prove the truth of the statement – it is not hearsay. Illustration: W was a witness in a case where the issue was whether his brother was alive at that particular day or not. His brother died on April 26, 2002. W was asked; did you know whether your brother was alive on April 21? W replied, “Yes, I spoke to him on that day through the phone as I was in Paranaque and he was in Quezon”. W was asked, When you were conversing, did your brother tell you anything, if any? “Yes, sir. He said, “it’s raining halo in Quezon.” If W repeated his brother’s statement in court, is that hearsay? Now, look at the purpose. If the purpose is to prove that at that day, it really rained halo, that’s hearsay coz W had no personal knowledge. It was his brother who had personal knowledge and who wasn’t in court to be cross-examined. But if the purpose of W was to prove the fact that his brother was alive at that day to tell me the event or that the phone line between Paranaque and Quezon was operational or to present to the court the statement he heard from his brother- not hearsay, since

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it’s not to prove the truth of the statement that indeed it rained halo that day. So, again, look at the PURPOSE! Hearsay, as a rule, is not accepted as evidence. But that has to be objected because inadmissible evidence becomes admissible through waiver. But just because it is admitted it does not necessarily mean that it will be given weight or probative value by the court. But the very important rule in evidence, if it is inadmissible you must object because it will find itself in the records if you do not object. You also have to object to lay the foundations for a future appeal, in case you lose the case in the trial court, to point out assignment of error in the trial court because you cannot for the first time object on appeal (objections to the evidence must be found in the trial court). If you point out the errors on appeal without first pointing out on trial court, it is already waived. One of the most important purposes of objection is to keep out of the records inadmissible evidence. Hearsay is not reliable because it is not reliable as the person who knows the court is outside the court and is not possible to cross-examine him. And the one who is in court is a person who has no personal knowledge to prove the truth of the statement.

Are there instances where hearsay evidence is admissible? Yes. There are exceptions which are also hearsay. But they are called admissible hearsay. Why do the rules admit hearsay evidence by way of admissions? Let’s use common sense. We live in a hearsay world. Imagine if you demand from us personal knowledge of everything?! We have no personal knowledge of everything! That wouldn’t be practicable. We have to rely on the knowledge of someone which is hearsay. For convenience, we have to admit some hearsay evidence. Suppose I tell you, meet Jinky, my sister. I call her my sis because my parents told me she’s my sis – a family tradition. I have no personal knowledge coz I wasn’t there when she was manufactured by my parents. But that is admissible – pedigree. Even if I witness her being delivered in this world, I’m not even sure if we have the same parents because I have no personal knowledge. If we insist strictly on hearsay rule and on personal knowledge, no one could lecture on historical events or scientific matters because you have to be there within the rule. How can I lecture on the law on gravity when I am not within the law of gravity? That requires personal knowledge. Let’s assume, I am professor of history. I said on March 16, 1521, Magellan came here in the Philippines. He delivered his first mass in Limasawa and he first gave this country a name – the Archipelago of St. Lazarus, etc. I was not born at that time. Hearsay, I have no personal knowledge. Imagine the academic disasters that will follow if you insist that the lecturer be one

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living on March 16, 1521, etc? How did I learn about it? An exception –     

Learned Treatises that includes authoritative historical books. By necessity, we have to accept hearsay evidence. Common reputations include monuments (i.e. Rizal’s monument). Regular records of the business Pedigree Dying declaration –

Section 37. Dying declaration. — The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. An unwritten element here is that the declarant must have died because if he had not died he is the one who will testify. This started in England. H and W lived in a big house together for 30 years who never touched each other. But if they go out of the house, they are a model of perfect marital bliss, very sweet – but only for a show. In the house, they would separate. One night, H went to the library in their house to get a book, W also did the same. They quarrelled. 3 shot guns were heard. The maids went to the sala and saw H soaked in his own blood. Police came and bent over H. H’s chest was ripped open and his intestines were open. Police asked H and H pointed to W sitting on the sofa calmly smoking the cigarette. W said, “you are the policeman you figure it out”. H whispered to police, my wife shot me. When W was sued for parricide, the issue was can the police’s testimony that the dying admission be admitted in evidence. The lawyer argued that if you are at the point of death and are going to meet the Creator, are you going to meet Him with black line of your lips? No. When the guy was conscious of his impending death and he declared a statement. In most probability he was going to tell the truth. We have to admit hearsay - Dying declaration as an exception. Because it was admitted as part of presumption that a dying man would not tell a lie. Remember, this was 300 years ago when the moral values of people were strong. But now? Nevertheless, dying declaration is still an admissible hearsay. Elements: 1.

Consciousness of Impending Death – impels a person to tell the truth. That is the philosophy of the rule.

Let us suppose the person who was dying actually survived. He is the most competent person to testify. But he cannot do so since he is paralyzed and he cannot talk. Can his declaration be admitted as evidence? Yes. But not as a dying declaration but as a res gestae as it was uttered in a startling event. Suppose a person asked you, who shot you? And you answered “Jonathan Capanas shot me and Sir I am going to go any moment now. That dead person beside me is also shot by Jonathan Capanas.” Are these dying declarations? Not all. The

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one about my death, yes. But the death of someone else, no. (But it can be admitted as part of res gestae) 2.

It must be about the cause and circumstances of the death of the declarant.

When you talk about hearsay evidence, I’ll give you an example. An American example. W and B were living heirs of F who just died and left a will. F left 100 hectares to B but left only 100 sq.m. to W. In order to have equal share, W will prove that the will was not validly executed. W would show that F was of unsound mind at the execution of the will. Intestacy would have followed. So, in the probate, W would prove that F was insane. W’s lawyer asked W as to when the will was executed. W testified on the circumstances. During the course of conversation F allegedly told W a secret that it was not Neil Armstrong who went to the moon and that it was F. F confessed allegedly that F was the last bf of Marilyn Monroe and that Margaret Thatcher was his gf. If W would present the statement the truth of those statement, that would be hearsay. If W would present those statement to prove that such statement was made to prove his unsound mind, it wouldn’t be hearsay. Rule 130, Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36a) Res gestae is the event. The statements describing the events are the parts of a res gestae. These are statements made immediately before, during, after a startling event. The one who made the statement is not testifying in court – hearsay. The one who heard it is testifying. Illustration: W witnessed and shouted “Tamano just shot Villanueva!” then 3 shots were heard. W saw it. W should have testified in court but he cannot do so since he migrated in US. Instead, N testified in court that she heard W shouting that Tamano shot Villanueva. Rules presumed that N said the truth. When N was influenced by an excitement of an event, there is no room for fabrication or telling a lie. There is Reliability. Statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (Never been asked in the bar) Illustration: Money was handed to C. It meant nothing. The statement accompanying it will be part of res gestae and will give it meaning. If I give it without saying anything, it doesn’t mean anything. But if I say that I pay it for my debt. It means that I have debt. If I say that I gave it as a token of love, that is part of res gestae. Or it could be a bribery or a loan. Remember that in dying declaration, the one testifying is not the dead! 

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(c) In the case provided for in Rule 132, Section 14, (46a, 47a) Section 48. General rule. — The opinion of witness is not admissible, except as indicated in the following sections. (42) Generally, an ordinary witness cannot give his opinions. One who can give are the experts. There are exceptions where ordinary witness can give opinions: Section 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given, may be received in evidence regarding — (a) the identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person

Rule 132, Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23a) -

There is no mention of an expert here  An expert’s testimony is helpful but not indispensable.

You can testify as to whether he was happy or sad at that time. Bar 2006. Sec. 48-50, Rule 130 Section 51. Character evidence not generally admissible; exceptions: — (a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.

Character evidence is generally inadmissible. There are exceptions such as in civil cases where the character is the issue i.e, cases involving damages on the ground fraud (which involves character). Illustration. In a criminal case, the prosecution called the first witness, N. The question was whether N knew the accused. N replied that yes since the accused was his neighbour for 20 years. N observed that the accused is quarrelsome and violent. If you were the defense, are you going to object? Yes. That character evidence is not admissible. The prosecution cannot prove the bad character of the accused in its evidence in chief. It can only do so during rebuttal. The prosecution must wait for the accused to talk about his good character then the prosecution can answer back that it’s not true and that the accused is bad. In practice though, if you are a prosecutor, just prove his bad character in the evidence in chief. If he does not object it will be found in the record. Tira lang ng tira! Inadmissible evidence becomes admissible when the objection is waived. TRANSCRIPT 8 The prosecution has no right to put in issue the character of the accused. The prosecution must wait until the accused put himself in issue his character. The accused can prove the bad character of the victim. An exception to this is in sexual abuse shield rule. The accused in a sexual child abuse case cannot prove the sexual propensity of the child. Remember, the accused has always the right to prove his moral character. The moment he does that, he opens the door for the prosecution to rebut the goodness of his character. Let’s go back a bit in Rule 130. Section 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt.

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer.

(b) In Civil Cases:

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)

Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

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TN: An offer to compromise in a civil case will have no effect on the party offering the compromise. It will not even result in an admission of liability. But in a criminal case, it is an implied admission of guilt. But there is one type of felony where an offer of compromise is not an admission of guilt. That is in criminal negligence or in cases allowed by law to be compromised (i.e BP 22, negligence cases) Illustration: if I offered to pay your hospital bills, it will not be an admission of liability, otherwise you would be preventing a person from doing a humanitarian act. The Good Samaritan Rule. It does not have negative implication of liability. In US, there was a case where the guest of a hotel stepped on the staircase which eventually broke up and the guest was injured. The hotel immediately fixed the staircase. The issue was whether the act of the hotel was an admission of liability. No, because if you would consider it as an admission no one would repair the staircase if repairing it would mean liability. There are certain concepts in Rule 131 that you should know. The most important concept there is the Presumption. No need to memorize! Just go over them. What I am interested is the conclusive presumption in Sec. 2 which was based on the doctrine of estoppel. Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: (b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a) The clear example is letter (a) is in Corporation Code, Section 21. Corporation by Estoppel. The Court ruled that having reaped the benefits of the contract entered into by Chua and Yao, with whom he had an existing relationship, petitioner Lim is deemed a part of said association and is covered by the doctrine of corporation by estoppel. The Court also ruled that under the principle of estoppel, those acting on behalf of a corporation and those benefited by it, knowing it to be without valid existence, are held liable as general partners. ||| (Lim Tong Lim v. Philippine Fishing Gear Industries, Inc., G.R. No. 136448, November 03, 1999) Estoppel cannot be rebutted. It is conclusive and permanent in Sec. 2.

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The disputable presumption are only temporary presumptions. The other name for this is rebuttable presumption or prima facie presumption. The way to rebut this is to use clear and convincing evidence. The words clear and convincing evidence is not even found in the Rules. It is found in jurisprudence. "Clear and convincing evidence" should be used in granting bail in extradition cases. This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence.||| (Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19, 2007) There are however presumptions found in substantive law i.e. that the contract is supported by sufficient consideration; that there is cause in the contract; that the later instalment has been paid, it is presumed that the earlier instalment has been paid; that when the principal is paid, it is presumed that the interest was also paid. There is also a Constitutional presumption that every person is presumed innocent of the crime unless otherwise proven. In transportation law, Art.1756 and Art. 1735. A presumption dispenses with proof. Illustration: A passenger boarded a bus from Monumento in Kalookan to Makati. On the way, it collided with a dump truck and the pax died. The only child of the dead pax sued the bus company for the death of his father. He was only able to prove that his father was a pax and that he died. The bus company filed a demurrer to evidence on the ground that under the facts and the law he has no right to relief as he was not able to prove the negligence of the common carrier. Rule on the Demurrer to Evidence. Denied! There is here a presumption of negligence on the part of the common carrier. No need to prove the negligence. Negligence is the fave topic in remedial law! Take note of A cause action based on breach of contract. Whatever that contract is, you have no obligation to prove the negligence of the defendant because in a common carrier situation, negligence is presumed. But if it is a private carrier, negligence is not presumed. But you don’t have to prove negligence as it is not an element in a breach of contract. There are only 2 elements on a suit based on breach of contract: 1) existence of contract; 2) breach of contract. This is true in all cases of breach of contract. Take note of the definitions! I.e. Burden of proof in Rule 131. In civil case, who has the burden of proof? Plaintiff or defendant? Both! Plaintiff to prove his claim. Defendant to prove his defense. But in criminal case, the burden is on the prosecution. An accused is convicted on the strength of the evidence of prosecution and not on the weakness of the defense. Dean Riano’s advice: If you’re the counsel in a civil case, file a series of written interrogatories. If it is ignored, Sec. 5 of Rule 29 applies.

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SECTION 5. Failure of Party to Attend or Serve Answers. — If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees. Use this as gulpi de gulat! Haha! Diba minsan, I am the counsel of the plaintiff, I can sometimes ask the adverse party to be my witness. He can refuse. The court will say, you be a witness. But he can refuse since I did not send him interrogatories before. Without giving him written interrogatories I cannot compel him to be my witness and I cannot have his depositions taken pending appeal. Or you may avail of Rule 26, Request for Admission of certain facts or documents. No form there. This can be before or during pre-trial. If he does not reply, the matters you wanted to be admitted by him are deemed admitted. As of July 13, 2004, Rules 25 and 26 are mandatory. Burden of proof- fixed on a party. Burden of evidence – not fixed. It is a jurisprudential term. During the course of trial you’ll find that the defendant has presented convincing evidence. And I have the duty to overcome that evidence as the trial goes on. That obligation to overcome his evidence is the burden of evidence. And in the next hearing I will present my own evidence stronger than his evidence. She has the burden of evidence to disprove my claim. It moves as the trials shifts. But the burden of proof is fixed. Your claim is fixed. Your defense is fixed. You have the burden of proof to prove your claim. Bar 2004. If you are the plaintiff and you were not able to live up to your burden of proof, you were not able to prove it. She is going to file a demurrer of evidence because of the insufficiency of my evidence. Also distinguish competent witness from credible witness; question of law and question of fact.

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(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a) Illustration: there is a civil case for collection of sum of money in the trial court. One of the defendant’s witnesses is X. On cross-exam X was asked whether he hasn’t paid his debt (not evidenced by any promissory note) to the plaintiff. X didn’t answer. Can he be required to answer the question? That is covered by first phrase of Sec. 3. He should be made to answer even if his answer could establish a claim against him. He cannot invoke the right against self-incrimination as his answer would not expose him to criminal offense. Constitution provides that no person shall be imprisoned for non-payment of debt. The court can cite you in contempt if you won’t answer. But if your answer would subject you to criminal offense, you cannot be compelled. That is sec. 3(4). I have a wintess. I asked him, “isn’t it that 2 months ago you pointed a gun to B?” can he refuse to answer? Yes. Because that will expose him to grave threat, a crime. Briefly, let’s talk about right against self-incrimination. It refers only to a right against testimonial compulsion. It does not refer to a right to prevent an examination on your body. If the court orders you to submit into physical exam, you cannot refuse. Villaflor v. Summers; but c.f. Beltran v. Samson – cannot be compelled to produce handwriting. There is a difference between the right against selfincrimination of the accused and that of the witness. When the accused invokes this right, he can totally refuse to sit on the stand. But a witness does not have such that right. He must go to court and sit on the stand. He can only invoke this right when the questions are asked. He has to wait for the question.

Rules on witnesses are kalat sa Rules Rule 130, Sec. 20 Rule 132, Sec. 3 Section 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

What is the quantum of proof required in criminal cases? Proof beyond reasonable doubt. It does not mean absolute certainty. It means moral certainty Civil cases- preponderance evidence Administrative case – substantial evidence.

Dean Riano’s Lecture 2014

Leading questions Because of the insistence of judicial affidavit rule you no longer use direct examination. But you can still object to leading questions. When is a question leading? A question that suggests the answer to the witness. Leading questions are not allowed in direct examination, it is as if it is not the witness who testifies but the lawyers. But leading questions are allowed in cross-examination. In fact it is the best question in the cross-examination since the intention there is to paint a picture in the mind of the court of your version of what has happened. Again, leading questions are not allowed in direct examination unless it is preliminary, witness is a child or immature or an adverse witness. Misleading questions – when it assumes some things when not yet in the record; assumes a fact not yet in evidence. There is an assumption. In law, do not assume. Whenever you say something, it must be with evidence. We only conclude when there is evidence. The first thing you ask is, Do you have an evidence? How do you impeach a witness? Impeaching a witness means destroying the credibility of a witness so that his testimony will not be believed. There are two aspects: 1) the witness – the messenger; 2) what he is talking – the message. The messenger may be credible but his message may be not. So to destroy the message is to destroy the messenger. Rule 132, Section 11. Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (15) Let us summarize this: 1. 2.

Contrary evidence Evidence that his general reputation for truth, honestly, or integrity is bad

Let’s say last week, the witness for the prosecution testified against the accused. After prosecution presented his witnesses, I will now present the witness for the accused to destroy the star witness of the prosecution. In the course of examination, the counsel for the accused laid the basis that its witness knew very well the prosecution witness. Then the defendant’s counsel asked, What can you say of the character of the other witness? She says, very bad. It is the duty of the prosecution to move to strike out her statement. You don’t impeach a witness

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by evidence of his bad character. Look at section 11, you do not see the word character there; it is reputation. Why can’t you impeach a person because of his character? Because in sec. 51 of rule 130, character evidence is inadmissible. This is how to analyze rules. What can you say about his reputation in your community? (she is competent coz we already established that she knew him very well) she replied that the accused is very quarrelsome. If you are the counsel of the other party, would you object to strike the testimony out of the records? Yes. The reputation about what she said – quarrelsome, is not the reputation you use to impeach. It must be about integrity, honesty and truth. Not being about quarrelsome and aggressive. That is how to study the rules. 3.

Evidence of particular wrongful acts that he has been convicted of an offense.

Tell me if this is a correct impeachment, Kristin Gudian is the witness of the other party. As counsel I asked her, “There was a Kristin Gudian who was arrested last week for robbing a 99-year old man. Are you the same Kristin Gudian? She did not answer. And also after that there was a Kristin Gudian arrested for robbing Metrobank. I am trying to impeach her. What is your objection? Look at sec. 11. You cannot impeach a witness by evidence of particular wrongful act. The only particular wrongful act you can use is when that act already amounted to conviction. But if it did not amount to conviction, you cannot use that to impeach the witness

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4. Prior inconsistent statement evidence that he has made at other times statements inconsistent with his present, testimony

For example, after the incident, you testified and told the criminal investigator that it was the plaintiff who tried to beat the red light. But during the trial, you said that it was the defendant who tried to beat the red light. How do you impeach the witness here? First use the sec. 13. Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (16) Give the witess the chance to explain sec. 13 is in jurisprudence called, Laying the Predicate. So you must ask the witness first whether she said it or not and ask her to explain. A witness is also given due process. Sec. 13 applies when the mode of impeachment is a prior inconsistent statement.

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By the way, when you cross-examine a person, the modern way of cross-examination is not to let the witness know that you are exposing his lies. Example: Ace is a witness in a stabbing. During the cross-examination: Ace, I admire you for the details you mention during the direct exam. Let me ask you some questions. Is it not that you testify that the event happened in 9pm? Yes sir. And you saw what happened exactly and very clearly as the killing happened beneath a well lighted electric post? Yes sir. And I figure you remember some details, right? Yes sir. Have you remembered that it was a knife that was used in killing the victim? Yes sir. And I know that you remember the color of the handle of the knife? Yes sir. What is the color? Black sir. And I know that you also remember the length of the knife used. Was it around 6 inches? More than 6 inches sir. And you remember what the assailant was wearing, what was it, maong or dress pants? Maong sir. And you remember the brand of the maong? Yes sir, levis. What was the shoes he was wearing and the color? Addidas sir, white. The shirt? White sir. What was written on the shirt? Yes sir, no fear.

Our local name for Tender of excluded evidence. — OFFER OF PROOF.

In your memorandum or oral argument, try to remind the court that she is lying. When you see a startling occurrence like a gore stabbing, you do not remember the details like the brand of the shoes. You do not pay attention to the brand of the pants, to the color of the shirt. She knows too much details. The person who saw a startling stabbing incident only sees the general act of stabbing. How can she see the handle when it was covered with the hands? When she knows a lot of details, that is too good to be true. A witness who is not lying sometimes do not remember some details. But a witness who never remembers anything is also telling a lie.

(b) The facts from which the inferences are derived are proven; and

Criminal Procedure

Civil Procedure

The court shall consider no evidence that has not been offered. When I ask the court that this deed of sale be considered as Exhibit A, the court will say, mark it! Under the present rules, the marking is done in pre-trial. If it is marked later in the trial, you can object. The court then will use its discretion whether to allow it or not. That is the effect of the july 13, 2004 amendments on the pre-trial.

cause of action belongs to the People of the Philippines

cause of action belongs to a private individual – natural or juridical person

But let us suppose that the court allows the marking. The marking of the evidence does not make the evidence as evidence. It is only identified but not yet evidence. It has to be formally offered. How? A formal offer of exhibit. Your honor, my first exhibit is exhibit A – a deed of sale. To prove your honor that the amount of the sale is P500K and not P50K. It is a Xerox copy. Objection, not best evidence. Your answer? Your honor, I already previously laid the basis for the presentation of the secondary evidence – the Xerox. It was proven that the original copy was lost without my bad faith. The court would say, sustain.

Most of the provisions of the bill of rights are rights of the accused. To level the playing field.

What will you do if your witness is not allowed to testify or your exhibits are not admitted by the court? Rule 132, Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (n)

It is not offer of exhibits or offer of evidence. It is offer of proof. In the Philippines, you only summarize the testimony and have it on record. Do not panic if the court does not allow your witness to testify. If it is a document or object disregarded by the court, have it attached to the records of the case. Is an extrajudicial confession sufficient for conviction? No. Unless corroborated by evidence corpus delicti (elements of the crime). Circumstantial evidence could convict in homicide or murder. But in drug cases, no conviction if you do not show the drug. Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstances;

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5) CRIMINAL PROCEDURE In studying Crim Pro, the first thing in your mind is, how does this differ from Civ Pro?

Offended party is a Star witness of the People of the Philippines

Criminal and civil liability. Art. 100 RPC when there is a private offended person

Civil liability

Arrest

There is no process of arrest in civil case. But, if cited in direct contempt, he can be arrested as it becomes a criminal contempt.

Preliminary investigation

No investigation.

Bail

No Bail concept

Arraignment

No arraignment

Motion to quash

No motion to quash. But there is motion to dismiss

Pre-trial

Pre-trial

Preliminary

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Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (2a)

Trial

Trial

Judgment

Judgment

Motion for New Trial/Motion for Reconsideration

Motion for New Trial/Motion for Reconsideration

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What if there is NO NEED FOR A PRELIMINARY INVESTIGATION?

look at the grounds!

Neypes Ruling in Yu v. Tatad

Nepes Ruling

Rule 127. Remedies

Provisional Remedies

Provisional

Searches. Rule 126

No Searches

Aspects of Jurisdiction

Aspects of Jurisdiction:

  

jurisdiction over the subject matter (the offense) jurisdiction over the territory jurisdiction over the person of the accused

   

jurisdiction over subject matter jurisdiction over parties jurisdiction over issues jurisdiction over res

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the the the

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the

Venue is jurisdictional

Venue is not jurisdictional

When the venue is improper, the ground for MTQ is lack of jurisdiction.

When the venue is improper, the ground for MTD is improper venue.

Institution of the action is through Rule 110

Institution of the action is through filing of the complaint

Depends on whether or not a preliminary investigation is required.

Rule 115, Rights of the accused Does the defendant in a civil case has the right to speedy trial? No. It is only speedy disposition of case. A speedy trial is a right on the criminal case. The public cannot invoke the right to speedy trial. Only the accused can invoke this. A criminal case requires preliminary investigation:  -

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Imposable penalty (not the penalty actually impose) at least 4 years, 2 months, 1 day. Less than that, there’s no need for preliminary investigation

If the case requires a preliminary investigation, a complaint is filed before the proper officer for purposes of preliminary investigation. Who are these officers? of Rule 112. SEC. 2. Officers authorized to conduct preliminary investigations. — The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other officers as may be authorized by law. (i.e. legal officers of COMELEC, PCGG, Ombudsman)

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1. Filing of the complaint before the prosecutor Depending on the location. There are places in the Philippines like in manila and in other chartered cities which require that every case whether for PI or not should pass the Office of the Prosecutor. In cases where there will be no PI, the prosecutor will only examine the affidavits and documents of the complainant. It will not give notice to the respondent. The prosecutor will consider the evidence of the complainant and on that basis file an information in court. Rule 112, SEC. 3. Procedure. — The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. Rule 112, SEC. 8. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. — (a) If filed with the prosecutor. — If the complaint is filed directly with the prosecutor involving an offense punishable by an imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.

2.

Filing of the complaint/information before the MTC.

- But if the place does not require the passing of the complaint to the prosecutor, go to Rule 112, Section 8 (b) If filed with the Municipal Trial Court. — If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this rule shall be observed. If within ten (10) days after the filing of the complaint of information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of

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searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (9a)

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and document.

- jurisdiction of MTC is up to 6 years of imprisonment. Upon the receipt of the complaint/info, the MTC judge will have the following options:

Objects as evidence need not be furnished a party but shall be made available for examination, copying or photographing at the expense of the requesting party.

1. personally evaluate the evidence of the complainant.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

2. require a personal examination of the complainant and his witness in writing asking them searching questions to determine probable cause. 3. may require them additional evidence If after using those option there is yet no probable cause found, dismissed. But supposed the court found probable cause, it will issue a warrant of arrest. Suppose the accused was previously arrested, the court will issue a commitment order. But since this is MTC, minsan ang offense napakaliit, arresto mayor. Minsan not warrant but only summons. What is the effect of the institution of the criminal action in the prescription of offense? It is interrupted unless so provided in special laws. In violations of municipal ordinances, the filing in the prosecution does not interrupt. It must be one filed in court as an information or complaint. (transcriber’s comment: c.f. Pp. v. Pangilinan) Preliminary Investigation -when the offense is punishable for at least 4 years, 2 months and 1 day. - who are the officers who can conduct P.I What is the basic outline of the process of PI Sec. 3, Rule 112. SEC. 3. Procedure. — The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are such facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial, (3a) Now, is it possible for the investigating prosecutor to immediately dismiss the case even without sending subpoena to the respondent? Yes, if he finds no ground nor reason to file a case; no probable cause. But if there is a ground, go to Sec.3b. When respondent received a subpoena, he cannot file an MTD. He must file a counter-affidavit and submit documents. He is not allowed MTD. TRANSCRIPT 9 How is the criminal action instituted? That depends on whether the case requires PI. If it does not require PI, you can file the information directly in MTC because of the jurisdiction.

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If there is no PI, it is still possible to file a complaint before Prosecutor’s Office in those places i.e. chartered cities which require passing the case through prosecutor’s office. But even so, since there is no PI required, the respondent will not be notified, not be subpoenaed. The prosecutor will only determine the affidavit and documents of the complainant because there is no PI The minimum penalty so that the rules will require PI is 4 years, 2 months and 1 day. If there is PI, the prosecutor will have to subpoena the respondent; that is if he does not dismiss the complaint. Respondent is supposed to file counter-affidavit and submit documents in support of his defense. Suppose respondent files instead MTD, that is not allowed. The last part of Rule 112, sec. 3c disallows MTD. If the investigating prosecutor decides to conduct a hearing on this, this is not a true hearing since the parties cannot examine and cross-examine. If they have questions, they can submit it to the investigating prosecutor and it is the prosecutor who will ask the questions. These are clarificatory questions. When does the prosecutor decide to conduct the hearing? When there are certain factual issues to be resolved. Suppose the investigating prosecutor finds probable cause, he prepares a resolution and the information. That information cannot be filed in court without the approval of the higher authority, i.e provincial prosecutor, city prosecutor or Ombudsman. In that information is found a certification which is a certification by the investigating prosecutor under oath certifying that he has personally examined the complainant and his witnesses and that there is probable cause to believe that a crime has been committed and that the respondent is probably guilty thereof. He certifies that the respondent has been given the copy of the complaint, evidence and documents of the complainant and that he was given the opportunity to submit his controverting evidence. In other words, he certifies that he has duly conducted a preliminary investigation. ** 1. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION; REQUIREMENT FOR CERT IFICATION; NOT AN INDISPENSABLE PART THEREOF. — Relative to the claim that the certification did not fully comply with the requirements of Section 4, Rule 112, of the Rules of Court, we need merely to reiterate the settled rule that such certification is not an indispensable part of, let alone invalidate even by its absence, an information. In People vs. Marquez, 27 SCRA 808, 813, the Court has had occasion to explain: ". . . It should be observed that Section 3 [now Section 4] of Rule 110 defines an information as nothing more than 'an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court.' Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such.

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True, as already stated, Section 14 of Rule 112 enjoins that 'no information . . . shall be filed, without first giving the accused a chance to be heard in a preliminary investigation,' but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted." 2. ID.; ID.; PRELIMINARY INVESTIGATION; QUESTION THEREOF SHOULD BE DONE PRIOR TO AN ARRAIGNMENT. — The question of whether or not a preliminary investigation has been properly conducted is itself one that should be interposed prior to an arraignment. Relative to his alleged warrantless arrest, he has waived, by filing a petition for bail, any irregularity attendant thereto. Indeed, by his application for bail and by entering a plea of not guilty and then submitting to the proceedings below, appellant must be deemed to have foregone his right to preliminary investigation and to question any irregularity that might have attended such investigation. ||| (People v. Lapura y Cajan, G.R. No. 94494, March 15, 1996) Do you have a remedy if you are the respondent when the provincial/city prosecutor approves the resolution and the information of the investigating prosecutor? Yes. You can file a motion for reconsideration within 15 days from receiving the resolution. Suppose it is denied by the provincial/city prosecutor, do you have the remedy? Yes. Under the DOJ Rules, you can file a petition for review with the Secretary of Justice. Now, suppose the Secretary of Justice resolves the case against you, can you appeal? No, there is no appeal. But you can have the resolution of the Secretary of Justice reviewed by a petition for certiorari against the secretary of the DOJ in the Court of Appeals. When you go to CA you are not appealing, you are attacking the resolution of SOJ using the theory of grave abuse of discretion amounting to lack of jurisdiction. When you use Rule 65 that is not an appeal. Simply a mode of review. Why do you go to CA by way of Rule 65? Because there is no appeal. Suppose you lose in the CA, what is the remedy? SC under Rule 45. Is it possible to have the resolution of the SOJ reviewed by OP? Yes. But only when the penalty impsable in the resolution is an offense punishable by reclusion perpetua or death. Memo Circular No. 58 of June 30, 1993. When from the SOJ, you go to OP that is an administrative appeal, not a judicial appeal. The resolution of SOJ is not subject to judicial appeal. That is why you go to CA by Rule 65. But there is an administrative appeal to OP. By the way, death cannot be imposed na ha. The highest imposable penalty is reclusion perpetua. Even if the death

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penalty will not be imposed, the definition of capital offense still exist. Sec. 6, Rule 114.

support of the filing of the information to determine probable cause.

Suppose you lost in the OP, is your remedy appeal? Yes. To CA under Rule 43. So when the OP decides against you there is now a judicial appeal, you go to CA, a petition for review under Rule 43. If you lose in the CA, go to SC under Rule 45. Questions of law.

Preliminary examination – the determination of probable cause by the court. It is judicial function. This is conducted after an information is filed in court. To determine whether or not a warrant of arrest will be issued. If there is no probable cause, information is dismissed. If the court is in doubt, it will require additional evidence. If there is probable cause, warrant of arrest. If already arrested, a commitment order is issued.

If there is direct filing in MTC, what is the MTC going to do? It has options, Rule 112, Sec.8b. 1. 2. 3.

Personal evaluation of evidence Personal examination in writing through searching questions Can require additional evidence

- Probable cause = dismissed

Preliminary investigation - the determination of probable cause by the prosecutor. It is an executive function. Prosecutors are under DOJ. This is done before any information is filed in court. The purpose is to determine probable cause whether the crime has been committed and the respondent is probably guilty thereof.

+ Probable cause = arrest If already arrested = commitment order,

There are offenses which are punished by a penalty more than 4 years, 2 months and 1 day but no preliminary investigation is needed.

but sometimes MTC may not issue a warrant of arrest but rather issue summons Suppose there is a decision to file a case in court. But on appeal, the SOJ reversed the decision of prosecutor and said that it shouldn’t be filed anymore; or if the information was already filed it should be withdrawn. Will the withdrawal order of SOJ be an order binding in the court? No. Even the SOJ wants the withdrawal of the information, the withdrawal of thte information is subject to judicial discretion. The court is not bound by the order of SOJ. Once the info is filed in the court the one in control is the court. ** The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.||| (Crespo v. Mogul, G.R. No. L-53373, June 30, 1987) Let us suppose the information is filed in court, does the court have the duty? Yes within 10 days from the receipt of complaint or information, the court has the duty, in Sec. 5 under the present rules as amended, to a make personal evaluation of the evidence submitted by the prosecution in

Now, let us assume that I was arrested in the act of committing homicide. I was arrested in flagrante delicto. Homicide has the penalty of more than 6 years, reclusion temporal. I was arrested lawfully without a warrant. I have no automatic right to preliminary investigation. Inquest will be conducted. It is a summary proceeding to determine whether an information will be filed. In an inquest, the prosecutor will only consider the evidence submitted by the complainant. However, the inquest presupposes that there is an inquest prosecutor available. Not all places have inquest prosecutors. In fact, now, we lack 3500 prosecutors, 1200 judges but not filled up coz of no money. If no inquest prosecutor available, the complaint could be directly filed on the proper court on the basis of the affidavit of the complainant or arresting officer. This is an instance of direct filing to RTC. Sec. 6. The inquest presupposes that the person has been lawfully arrested without a warrant. If with warrant, regular PI follows and not inquest. SEC. 6. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the

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provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438) However, a person arrested without a warrant is not necessarily deprived of his right to PI. The rule is that he cannot automatically be entitled to PI. He has to ask for it. So before the information is filed in court he could request for a preliminary investigation under one condition which is to sign a waiver of the Art. 125 of RPC. The waiver must be with assistance of counsel. If you do not waive it you will not be given a preliminary investigation. By the way, the counsel must be independent and should not be a government counsel. There is only one independent counsel of the government – PAO. Suppose naunahan ka sa pag-file ng information, can you still request for a preliminary investigation? Yes, within 5 days from learning of its filing, you can still file for a request for PI. Illustration: You have been arrested without a warrant lawfully for robbery. You asked for PI and waived Art.125 but you are still in jail. Can you ask for bail even before the formal charge is filed in court? Yes! What is the reason? The basis is the fact that you are under custody. RULE 114. BAIL.SEC. 17. Bail, where filed. — x x x (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held, (17a) Concededly, a person lawfully arrested and detained but who has not yet been formally charged in court, can seek his provisional release through the filing of an application for bail. He need not wait for a formal complaint or information to be filed since bail is available to "all persons" where the offense is bailable. 12 Section 7, Rule 112 of the 1985 Rules of Criminal Procedure provides that a judge could grant bail to a person lawfully arrested but without a warrant, upon waiver of his right under Article 125 of the Revised Penal Code, as Santos had done upon her inquest. Undeniably too, Santos was entitled to bail as a matter of right since the offense with which she was charged does not carry the penalty of life imprisonment, reclusion perpetua or death. 13 Notwithstanding, it was incumbent upon respondent Judge Beldia to grant bail to Santos in accordance with established rules and procedure. Respondent Judge Beldia failed in this respect and must thus be held administratively liable. Section 17, par. (c) of Rule 114 distinctly states:

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SEC. 17. Bail, where filed. — . . . (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. (Emphasis supplied) The Certificate of Detention 14 issued by the PNP-TMG-SOD shows that Santos was detained at Camp Crame in Quezon City. Thus, as correctly pointed out by the OCA, the application for bail should have been filed before the proper Quezon City court and not in Marikina City. In addition, it appears that no formal application or petition for the grant of bail was filed before the RTC-Marikina City. There were no records of the application or the release order issued by respondent Judge Beldia. Neither was there a hearing conducted thereon nor the prosecutor notified of the bail application. ACDTcE Under the present rules, a hearing on an application for bail is mandatory. 15 In Cortes v. Judge Catral, 16 we ruled that in all cases, whether bail is a matter of right or of discretion, reasonable notice of hearing must be given to the prosecutor, or at least his recommendation on the matter must be sought. The rationale for this was explained in this wise: Bail should be fixed according to the circumstances of each case. The amount fixed should be sufficient to ensure the presence of the accused at the trial yet reasonable enough to comply with the constitutional provision that bail should not be excessive. Therefore, whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant's character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. 17 Judge Beldia disregarded basic procedural rules when he granted bail to Santos sans hearing and notice and without the latter having filed a formal petition for bail. Accordingly, the prosecution was deprived of procedural due process for which respondent Judge Beldia must be held accountable. 18 ||| (Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005) The word “complaint” is used in 2 senses under the Rules. The first is the complaint which the offended party files to the prosecutor for purposes of preliminary investigation (this was formerly called denuncia). That complaint is not the complaint in Sec. 3 of Rule 110 which is a complaint filed in court. There is a distinction between a complaint filed in court and an information filed in court. A complaint filed in court is not filed by the Prosecutor. That’s why you cannot say accurately na the prosecutor filed the complaint. This complaint is filed

Dean Riano’s Lecture 2014

by the complainant or an officer charged by the law. It is always sworn and under oath. An information is mere accusation is writing. It does not say it has to be sworn. The prosecution files an information under the oath of his own office. Sec. 8 and 9 of Rule 110 are very important. Compare these with Civ Pro. SECTION 8. Designation of the Offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (8a) SECTION 9. Cause of the Accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (9a) -

Look at the similarity of Sec. 8 and 9. Both make reference to the qualifying and aggravating circumstances. These rules seem to tell us that the designation of an offense and the cause of accusation are not complete if no reference is made to the qualifying and aggravating circumstances.

** REMEDIAL LAW; CRIMINAL PROCEDURE; AGGRAVATING AND QUALIFYING CIRCUMSTANCES MUST BE ALLEGED IN THE INFORMATION. — Aggravating and qualifying circumstances must be categorically alleged in the Information; otherwise, they cannot be appreciated. In this case, as contended by both the defense counsel and the OSG, appellant cannot be convicted of rape qualified by the use of a deadly weapon, since that circumstance was not alleged in the Informations. He cannot be punished for an offense graver than that for which he was charged. (People v. Mendoza, G.R. Nos. 132923-24, June 06, 2002) Illustration: The accusation is murder and the qualifying circumstance is alevosia. Treachery was not proven. What was proven instead are abuse of superior strength, disregard of rank evident premeditation- but they are not contained in the Information. So the crime here is homicide. ** In the case under consideration, AAA was raped by appellants while she was under the custody of the CIDG. Further, appellants were members of the PNP-CIDG at the time they raped AAA. Nonetheless, these aggravating/qualifying circumstances were not specifically alleged in the informations. It is settled that the aggravating/qualifying circumstances be expressly and specifically alleged in the information, otherwise they cannot be appreciated, even if they are subsequently proved during the trial. Thus, the RTC was correct in imposing the penalty

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of reclusion perpetua on each of the appellants.||| (People v. Aure, G.R. No. 180451, October 17, 2008) In the present case, the Information charging the petitioners with violation of R.A. No. 6539, as amended, did not allege that the carnapping was committed by means of violence against, or intimidation of, any person, or force upon things. While these circumstances were proven at the trial, they cannot be appreciated because they were not alleged in the Information. Thus, the lower courts erred when they took these circumstances into account in imposing the penalty which they pegged at seventeen (17) years and four (4) months to thirty (30) years imprisonment. In the absence of these circumstances, the charge against the petitioners is confined to simple carnapping whose imposable penalty should have been imprisonment for not less than fourteen (14) years and eight (8) months, and not more than seventeen (17) years and four (4) months.||| (Andres v. People, G.R. No. 185860, June 05, 2009) Rule 110, SECTION 13. Duplicity of the Offense. — A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses. (13a) -

One complaint, one offense. One information, one offense. You cannot have two or more offenses in one complaint/information unless the law provides a single penalty for 2 or more offenses, i.e. complex crimes, compound crimes and special complex crimes.

When the law provides for separate penalties for separate acts there are distinct offenses. The last bar question used here is illegal possession of firearms. X was arrested for illegal possession of .45 caliber pistol. Then he was also arrested for the same occasion for illegal possession of 32 caliber pistol (not so powerful). They were contained in one information as they were caught from him in one occasion. Is this correct? No, because the law has a separate penalty for 45 caliber pistol and for a 32 caliber pistol. They must be contained in separate information. If you are going to be sued for 2 or more offenses under one information when they should be separated, you are supposed to object through a motion to quash. If you do not object, the defect is waived. You can be penalized in as many offenses as may be proven. Rule 120, SECTION 3. Judgment for Two or More Offenses. — When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense

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* so what are you supposed to do? You object, otherwise, it is waived.

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Another important topic is Rule 110, SECTION 15. Place Where Action Is to Be Instituted. —

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(a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred (for continuing crimes).

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(b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law.

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(d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. (15a)

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The essence of that provision is venue of criminal cases. Where should the criminal action be filed. If homicide is done in Manila, the information must be filed in Manila. If the information was filed in QC, can you file a motion to quash based on improper venue? No. Your ground should be lack of jurisdiction because venue is jurisdictional. Let me give you an implication. If venue is jurisdictional in criminal case, it cannot be waived because jurisdiction is not waivable. On the other hand, improper venue in civil case can be waived because it is not jurisdictional. Illustration: X, under circumstances of death, took the wallet of Y filled with money in QC. But the money was found with the wallet in Manila. Where should the criminal action be filed? In QC, where the act of asportation took place, not where the stolen article was found. Now, I am affrayed with respect to BP22. A check was issued to the payee in Manila. The drawee bank is in Makati. The payee who received the check deposited it in his account in QC. The drawee bank dishonoured the check. Can you file BP22 in QC? No. The place of deposit is not an ingredient of a negotiable check. The following are the ingredients: 1) the place of issue (the issue of the check is the contract in itself [S.191, NIL]); 2) the dishonour of the check. When will the place of deposit of a check be considered as an essential ingredient? If the check is a crossedcheck. A cross check is not supposed to be encashed but deposited.

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Let us have the general rule. Where should the criminal action be filed? In the place where the offense occurred or where any of its essential ingredients occurred. When can a criminal action be filed not in the place where the act occurred or any of its essential ingredients occurred? Letter B is one of the exceptions. According to Justice Regalado, “in the course of its trip”- not during a stop-over but while it is moving. Cubao – Caloocan- bulacan-pampanga-panggasinan-la union – baguio. Habang tumatakbo, nagkatinginan ang 2 pasaherong magkatabi. Ang ginawang ng isang salabahe binunot ang balisong at sinasaksak ang katabi. Patay. Nangyari sa Pangasinan. Kung titingnan ang general rule, saan dapat i-file ang murder case? Pangasinan. But under letter b of sec. 15, can the criminal case be filed in baguio city? Yes, the place of arrival. In cubao? No, there is no court in cubao, you say quezon city. So you file it in quezon city. Can it be filed in Caloocan? Yes. There are courts there and it is one of the places where the bus passed. This is an exception to the general rule. The rule is quite different when the crime is committed in a maritime vessel. Inter-island. In inter-island vessels, you do not use the place of departure or arrival. Use instead the first port of entry or where it passed during the voyage. Illustration: if you came from pier of manila, port of Calapan, Oriental Mindoro- Buac, Marinduque– Romblon – Cebu - to the port of Cagayan de Oro. A crime was committed while the ship was on Buac, Marinduque. Can the case be filed in Manila? No. It did not pass manila, it came from Manila. The point of departure is not included in maritime vessels. ^_^ Tuloy2x hanggang Cagayan de Oro City, hindi tumigil ang barko kasi nga may crime. Pwede bang ma-file sa Cagayan de Oro City? Yes because it became the port of first entry from the time the crime was committed. Although the place of arrival is not included but since it never stopped, the first port of entry became the place of arrival. Another instance where the case can be filed in a place other than where the crime is committed is in Art. 2 of RPC. Follow the English and British rule. A crime is committed in Philippine ship while in international waters. It is not committed in Philippine territory. Can it be cognizable in Philippine courts? Yes. Can it be filed in the Philippines? Can it be filed in Pangasinan court? Yes. The first court where it was filed. Even if it was not committed in Pangasinan. If you violate the laws under jurisdiction of Sandiganbayan, i.e. Art. 210-212 of RPC, RA 3019, etc., even if the violation is done in Cotabato, the criminal action can be filed in Quezon City. Sandiganbayan has no branches. You have to file it where the court sits – QC. Take note of Sec. 15. Rule 110 in relation to Rule 112.

Possible bar exams on Rule 111. Always in the Bar. RULE 111 Prosecution of Civil Action

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Every person criminally liable is also civilly liable. SECTION 1. Institution of Criminal and Civil Actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor 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. EDcICT Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a) (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. (cir. 57-97)

* do you refer to all civil actions to recover civil liability that are impliedly instituted with criminal actions? No. You are only referring to civil actions arising from the offense charged. That is critical to the understanding of Sec. 1 of Rule 111. The one referred to in Art. 100 of RPC, the one arising from the offense charged. There are civil liabilities not arising

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from the offense charged and they are not deemed instituted impliedly even if they came from the same criminal action. 2004, 2005 Bar exams. MCQ 2011, 2012. - a single criminal act, let’s say serious physical injuries, is not only a violation of RPC but also a separate source of obligation called law. There are several sources of obligation: law, contract, quasi-delicts, delicts, quasi-contracts. This is a violation of Art. 33 of NCC, not a quasi-delict nor a delict. This is simply a violation of a separate provision of law, an independent civil action. This is a violation of RPC. Because this is a violation of RPC, there is a criminal liability and a civil liability (Art. 100 RPC). This is the civil liability impliedly instituted in the criminal action. This art. 33 also gives rise to a civil liability which is not impliedly instituted. So, when you commit serious physical injuries, there are 2 civil liabilities: one arising from RPC, one arising from separate provision of law the Art. 33 which proceeds independently from the criminal action. A single act of negligence may be a violation of RPC and the law on quasi-delicts. If it violates the law on quasi-delict you call it culpa acquiliana or culpa extracontractual. If it is a violation of RPC because of reckless imprudence, lack of foresight, lack of skill, that is culpa criminal or criminal negligence; a quasi-offense (A365 RPC). If I am driving recklessly and I hit a pedestrian and the latter got severely injured, I could be prosecuted for reckless imprudence resulting in serious physical injuries or civil damages under quasi-delict. When I am sued in reckless imprudence resulting in serious physical injuries there is an implied civil action for the recovery of civil action arising from that act of reckless imprudence. The quasi-delict is not impliedly instituted. Art. 33, NCC. The source of obligation is not a delict. the source is a quasi-delict which is distinct from delict. I was sued for serious physical injuries. This is dolo, intentional. When i was sued, there is necessarily an implied civil action arising from Art. 100. During the pendency of criminal action, the offended party filed a separate action for civil damages under Art. 33. The accused said, MTD the civil actions for the filing was not reversed and litis pendentia (one arising from offense charged and one from Art. 33 which resulted from the same act) should you grant the MTD? No. There is no litis pendentia. The civil action from Art. 33 is not the one arising from RPC. It is separate and can proceed independently without reservation. What should be reserved is the civil action arising from the offense charged. Rule 111 SECTION 3. When Civil Action May Proceed Independently. — In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (3a)

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There are independent actions Art. 32, 33, 34, 2176 of NCC. By the way, Art. 32, 33, 34, are obligations arising from law while Art. 2176 is obligation arising from quasi-delict. But all of them have the effect of independent civil actions. This is a favourite topic in the bar. Where your civil actions arise from Articles 32, 33, 34, 2176 of NCC, even if those civil actions arise from criminal acts, they proceed independently. They can even be filed together with the criminal action or simultaneously. So for example, estafa involves fraud. When you commit it, it also gives rise to a civil independent action because of Art. 33 which mentions fraud. So when you sue someone for estafa, there are 2 civil liabilities: from estafa and from fraud (Art. 33). Suppose you are sued for homicide. Homicide is covered by generic name- physical injuries. So, there is a civil liability arising from it. That is the one impliedly instituted and an independent civil action, Art. 33, NCC. So you can sue him for homicide and at the same time sue him civilly under Art. 33, NCC. Suppose, he is acquitted of homicide due to reasonable doubt, the independent civil action is not extinguished because it is separate. It proceeds independently of the criminal action regardless of the result. It is not affected. The consequences: 

It has to be filed in a separate civil action. The filing is not prohibited. What is prohibited is filing in the same criminal action. Rule 111. Sec. 3 of Rule 111 is your key to understanding independent civil action. Prejudicial Questions “Prejudicial” has specific and technical meaning in crim pro. When there is a prejudicial question it is not found in the criminal case. It is found in the civil case. That question must first be resolved before you continue with the criminal case. The significance of prejudicial question is this. The general rule is that it is the civil action that is suspended when the criminal action is subsequently filed in case the civil action is filed ahead. When there is a prejudicial question, it is the other way around, it is the criminal action which is suspended. You have to wait for the resolution of the civil aspect of the case. A prejudicial question in a civil case may also result even in the suspension of a preliminary investigation. It may also result in the suspension of a criminal action. Short-cut: -

The acquittal of the accused will not affect the independent civil actions. -

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The independent civil action need not be reserved as the law itself reserves for them. (what needs to be reserved are those civil actions arising from delict which reservation must be done before prosecution starts presentation of evidence) With respect to civil actions arising from offense charged, when that civil action is filed ahead of the offense charged, the criminal action will take precedence and that civil action will be suspended until its final judgment. the independent civil actions are not suspended because they are independent. (they are like sovereign states @.@)

Remember, in BP22 cases you cannot reserve the filing of civil actions. (Sec. 1 of Rule 111) It has to be tried together with criminal action. Is there an instance where the civil action in BP22 cases tried separately from the criminal action? Yes. Only when the civil action is filed ahead of the criminal case. But if filed together, you cannot reserve the civil action. By the way, current circulars of SC discourage imprisonment in BP 22 cases. Payment of fines only which are equivalent to the amount of checks. Summary procedure. 2004. Can the accused file a counterclaim or third party complaint in a criminal case? Yes but it cannot be filed in a criminal action.

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1. Look at the cases. If both are administrative cases, forget prejudicial question. The concept of prejudicial question is related only to criminal procedure. An administrative and a civil action, no prejudicial question. A civil and a civil action, no prejudicial question. A criminal case and a criminal case, no prejudicial question. A criminal case and a civil case, there may be a prejudicial question. If you see under the facts of the case that the criminal case was filed first and the civil action was filed second, there is no prejudicial question. @.@. why? Look at the elements of prejudicial question.

Rule 111, SECTION 7. Elements of Prejudicial Question. — The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (5a) -

Suppose the first case is civil and the second case is criminal. The first element is complied with but do not conclude that there is already a prejudicial question. 2.

Look at the issues of the case. Are the issues interrelated and connected? Is the resolution of that issue determinative of whether or not the criminal action shall proceed. Common sense.

But when you argue whether or not there is a prejudicial question do not forget to mention the elements of

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prejudicial question, so that even if your conclusion is wrong at least you were able to show to the examiner that you know the elements. Yours is just a dissenting opinion. Hehe. ^_^ 3.

When a case is BP22 case. The first case is a civil case and the second one is a BP22 case, there is no prejudicial question. The elements of BP 22 are not the same with the elements of any civil case. @.@ Illustration: X paid P5M to C. P3M was cash and P2M was check. After payment, it was discovered that X was not supposed to pay yet since the debt was just P3M already covered by cash. The P2M check was overpayment. X wanted that the check be returned to him. Y refused. So X filed a civil action to recover the excess. It so happened that the check was deposited and it bounced. Now, Y filed BP 22 case. X said that BP 22 case should be suspended due to prejudicial question; we have to resolve first if there is overpayment because if there is so, the issuance of the check that bounced is a redundancy and it should not have been issued and it should not have been encashed and it should not have bounced. Is there a prejudicial question? Looks like it but actually there is NONE! BP 22 case has different elements from action for recovery of the sum of money.

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You cannot rely on old cases of Bigamy on prejudicial questions as the elements of prejudicial question before are different from the elements of prejudicial question since December 1, 2000. The cases in bigamy then were resolved under the old elements of prejudicial question. Here, you use common sense. Illustration: H married to W1. H married to W2 during the subsistence of the first marriage. W1 discovered this. . W1 filed a bigamy case. H filed an action for declaration of nullity of marriage on the ground that he married W1 without a marriage license. Is there a prejudicial question? Look first at the elements.  Argue that the criminal case was filed ahead when under the Rules it should have been the civil case that should be filed ahead. Under the Family Code, the absolute nullity of the previous marriage may be invoked only for the purpose of remarriage on the basis only of the final judgment declaring such previous marriage void. It is not for the party to say that the first marriage is void. You have to get a judicial declaration that the marriage is void. Because of Art. 40, there is no prejudicial question even if the first case is a civil case.

Now when you go to arrest in Rule 113, do not forget Section 5.

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SECTION 5. Arrest Without Warrant; When Lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. IDCcEa In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a) -

This has always been asked in the bar exam.

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It did not say “is about to commit” – old provision. There is no direct overt acts. In whose presence? Of the person making the arrest: need not be a peace officer as he could be a private person but it is risky ha. There is no problem with respect to letter a. The problem is on letter b because of the way the Rule is framed which is not accurate.

b) How can you have a personal knowledge of circumstances leading you to believe that crime is committed when it is not in your presence. What justifies warrantless arrest here is that the crime has just been committed. Hot pursuit. Kasi mainit pa eh. SC clarified this na this personal knowledge is not about personal knowledge of the crime because he was not there. But this is personal knowledge of certain circumstances that will lead him to have a probable belief that you committed it. How could that be possible? This could be understood in the light of the case of People v. Apol (can’t find this jud ai in cdasia ). Somewhere in Fort Bonifacio, Taguig, there was a jeepney plying its usual route. The passengers of that jeepney were robbed at gun point by 3 hold-upers. One of the victims was robbed of his beloved jacket that was very very new and expensive. Ang ibang pasahero matapos mahold-up nagsi-alisan na lang, siya hindi; dahil ang sama ng kanyang kalooban kasi ang bago nyang jacket na pinag-ipunan nya ng kay tagal2x ay kasama sa hinold-up. Within 30 minutes, dumating ang mga police nakita siyang tumutulu ang luha sabay sipon kinukwento ang nangyari sa kanya. Pinasakay sya sa patrol car at umikot sila para hanapin yung salarin at ang jacket. Wala pang sampung minuto sumigaw na ang victim, “ayun ang magnanakaw naglalakad suot pa nya ang jacket ko!” sabay hagulgol... inaresto ang salarin. Warrantless arrest. Ang issue sa SC invalid ang arrest kasi walang warrant. The crime of

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hold-uping was not committed in the presence of the police officer. Sabi ng SC. The basis of warrantless arrest is letter b. A crime has just been committed. And the police officers have knowledge of certain circumstance that will make him believe that he is the hold-uper because of the first-hand information given to him by the victim that the guy was wearing my jacket. So it was considered a valid arrest. Remember, Section 5 is not the only ground for warrantless arrest. Rule 113, SECTION 13. Arrest After Escape or Rescue. — If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (13) Rule 114, SECTION 23. Arrest of Accused Out on Bail. — For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. (23a) RULE 114 Bail -

This is a concept not found in civil case. Illustration: X has been accused of homicide. An information was filed against him. The court has issued a warrant of arrest but the accused could not be found. He is as elusive as the Malaysian Airline Flight 370. X asked his lawyers to apply for bail for him. And bail was granted. Could you assail the validity of the bail granted by the court? Yes. Bail can only be given as a rule in favour of the person in custody of the law. But X is not in custody of the law as he is a free man. And as a free man, he cannot avail of bail.

Rule 114, SECTION 1. Bail Defined. — Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety; property bond, cash deposit, or recognizance. * But is it possible or is there a theory under our Rules that grants bail to a person who is not even accused of a crime? Bar 1994. Yes. Bail to secure the appearance of a material witness to the criminal case. Rule 119, SECTION 14. Bail to Secure Appearance of Material Witness. — When the court is satisfied, upon proof

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or oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. What is the constitutional basis of the right to bail? The presumption of innocence. The most popular question on the bar on bail is on Section 4 and 5 of Rule 114. SECTION 4. Bail, a Matter of Right; Exception. — All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or releasedon recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (4a) SECTION 5. Bail, When Discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal.

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The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. TRANSCRIPT 10 When you study arrest, isabay nyo na ang searches Rule 126, in relation to Rule 113. The issuance of a warrant of arrest by the court presupposes that there is already a complaint/information filed in court. But the issuance of search warrant may be done even without yet an information filed in court. The reason why a judge conducts preliminary examination to determine probable cause after the filing of an information is to determine WON it shall issue a warrant of arrest or dismiss the case.

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After a preliminary investigation and the information is filed in court the court has no obligation to conduct a personal examination of the complainant and its witness if there is already preliminary investigation because the investigation has already been done in the prosecutor’s office. So, when the information is already filed in court, the judge will merely evaluate the evidence that was used by the prosecutor in the preliminary investigation below or it may require additional evidence; but the court has no obligation to conduct further personal examination through searching questions and answers. The option to conduct by the MTC of a searching question and personal examination in writing apply only when the filing is direct. Sec.8b. that is where the personal examination is only an option. The reason why the personal examination was given as an option in the direct filing in MTC in Sec. 8b was because there was no prior preliminary investigation. That is why it has the option to conduct a personal examination through a written searching question and answer. But the moment that there was a preliminary investigation, that option is not even granted to the court in Sec. 5 of Rule 112. The option was only to ask for additional evidence after a personal evaluation. This is important because in the issuance of search warrant, the rule is different. Rule 126, SECTION 4. Requisites for Issuing Search Warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. -

This is not a requirement in the issuance of a warrant of arrest when there is already a preliminary investigation. Why is the court in the issuance of a search warrant mandated by the Rules to conduct an examination under oath or affirmation of the complainant and the witnesses

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he may produce? Because there is yet no case filed in court. A search warrant could be issued even without a case filed. But I was telling you, the issuance of a warrant of arrest presupposes a complaint/information filed already in court that has passed a preliminary investigation. By the way, under the present rule, a warrant of arrest does not expire. There is no expiration for that found in Rule 113. What expires is a search warrant. Look at Rule 126 on the duration of a search warrant. SECTION 10. Validity of Search Warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. (9) This is not found in Rule 113. SECTION 6. Time of Making Arrest. — An arrest may be made on any day and at any time of the day or night. Compare this with Rule 126 SECTION 9. Time of Making Search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. GR: the warrant must be served in the daytime Exc: the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

Now, one of the most critical provision of Rule 126 is SECTION 13. Search Incident to Lawful Arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. When the person is lawfully arrested he could be searched. You do not need a search warrant because the search is incident to a lawful arrest. If arrest is invalid, the subsequent search and seizure is also invalid. C.f. Pp. v Mengote If you are a police officer being subjected to cross examination and you arrested someone without a warrant, you are supposed to say that you arrested him because either he has committed a crime or is attempting to commit a crime. Do not say that you arrested the accused on the basis of suspicious acting or that the information was reliable because that would be an illegal arrest. If he is suspiciously acting, the valid act would be to tell the court that you stopped him and frisked him under the rule of stop and frisk rule. This is not a full scale arrest, therefore the existence of a crime is not necessary for a Terry Search. You only need a genuine reason to ask him question and to frisk him which should not be intrusive but only tapping his outside clothing. But when you tapped his waist and there was an outline of a gun there is now a probable cause to open to his waist and ask him whether that gun is licensed or not. If there is no proof that he is licensed then there is now a reason to arrest him for illegal possession of firearms.

Dean Riano’s Lecture 2014

Remember Sec. 4, Rule 126, requirements for the issuance of search warrant. Those requirements are not mandatory for the issuance of a warrant of arrest. There is a doctrine in jurisprudence that says that when you lawfully arrest a person you can lawfully search him. But when you lawfully search him the place to be searched must only be that place within his immediate control. Because of this rule, many law enforcement officers have been charged administratively. Let’s say you arrested me lawfully due to a warrant of arrest. I can be searched my person and in my immediate control where I can search for weapons or destroy evidence. Suppose the officer went to the 2nd floor and made halughog and his warrant is only a warrant of arrest, can you do that upstairs and search? No, that is no longer within his immediate control. He cannot reach for weapon in the second floor when he is in the ground floor handcuffed. C.f. People v. Lian Siri, People v. Valerozo – when handcuffed, you have no authority anymore to search the cabinet even in the sala where he is because he cannot reach for a weapon or evidence to be destroyed. But if you are a law enforcement officer do not put that in record that he is handcuffed. ;) Are there instances a search incident to a valid arrest where there is no need for a search warrant? Yes.

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Customs searches

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Airports and transportation terminals

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Is there any other else? When a wife searches the attaché cases of husband... ooh... no search warrant is necessary ^_^ Look at this. X is a known drug dealer but he always manages to be released due to technicalities. One day he was in the park and carried a bag. Then a police who knew him well suspected that there was shabu in the bag. When their eyes met, the accused evaded the police’s gaze. The police arrested him and opened his bag. He found shabu and marijuana. During the trial, the accused moved to suppress the evidence. If you were the judge, would you suppress the evidence? He was arrested for acting suspiciously and that is not a ground for a warrantless arrest. Suspicions no matter how great are not grounds for warrantless arrest and searches. Rule 115 Rights of the Accused Right against Self-incrimination - Can be invoked in any case where you will be possible subjected to criminal prosecution. (so, this even applies to an administrative case, legislative investigations, civil case) - It applies to testimonial compulsions.

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When the search was with consent.

But you can argue that there was no full consent since while there was no actual intimidation, there was a moral pressure in the presence of heavily armed people.

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2. Plain view doctrine Kitang kita ang contraband. The officer must have the right to be in that place and not a trespasser. Illustration: R was serving a warrant of arrest to the accused. R saw in the living room of the accused. Upon arrest, R, a trained officer, happened to see on the table, shabu in 10 sachets. R got it and duly presented it to his superiors. The accused was also sued for illegal possession of prohibited drugs. Is the confiscation valid? Yes. No need for search warrant. Plain view. It would not be plain view if hinanap sa 2nd floor. But if pagsearch sa cabinet was within immediate control of the accused and may shabu, included pa rin sa plain view doctrine since the shabu was inadvertently discovered and the cabinet was within his immediate control. Plain view doctrine does not only apply to the sense of sight. It could also be the sense of smell. C.f. People v. Claudio. 3. Regulatory power of the state Sanitation inspector in inspecting whether the restaurants follow the sanitary rules of the government

Illustration: Rape case. During the trial, the prosecution presented as exhibit the shorts of a male found in the crime scene and asked the accused to wear it. Accused refused to wear it invoking his right against self-incrimination. Can he do this? No. It does not involve testimonial compulsion. We already discussed the distinction between the accused and a witness in invoking the right against self-incrimination. A mere witness cannot refuse to be a witness but an accused can totally refuse. A witness has to wait for the questions to be asked of him for him to invoke the right against selfincrimination. But if his answer would not subject him to criminal prosecution, he cannot refuse to answer. But he can refuse to answer even if the liability would only be administrative but the penalty is punitive in nature like fine. So it is as if criminal in nature. Supposed he is asked of his commission of the crime 25 years ago, he cannot invoke his right against self-incrimination because the offense and penalty already prescribed so he cannot anymore refuse. Remember Beltran v. Samson, Also remember the right to speedy trial can only be invoked by the accused in a criminal case. Others can only invoke the right to speedy disposition of the case

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When you are in a criminal trial and the prosecution has no witnesses against you, do not invoke the right to speedy trial without insisting first on a trial. But normally courts will give him 3 times, 3 chances to present evidence. If after 3 chances, no evidence yet could be presented by the prosecution, on the fourth hearing you now insist on a trial. If not, then ask for the dismissal of the case on the ground of the violation of the right to speedy trial. And when your case is dismissed on that ground that is not a dismissal. That is an acquittal. The prosecution can no longer appeal. Now, suppose you are asked, X was acquitted, can the prosecution file an MR? No, for you would put him on double jeopardy. Can the prosecution move for an MNT? No, as that will put him in another danger of being convicted. Can the prosecution appeal? No. How do you question an acquittal without violating the rules against double jeopardy? Rule 65. Show that the judge has committed grave abuse of discretion amounting to lack or excess of jurisdiction. If the court has abused its discretion gravely, the first element of double jeopardy which is the court should have competent jurisdiction is taken out of the picture. While appeal is prohibited, certiorari is not. Because when the court gravely abuses its discretion, the acquittal was rendered without jurisdiction. And an acquittal rendered jurisdiction is not a valid acquittal. Therefore if the acquittal is wrong, he can still be charged. There is no double jeopardy. There is only one jeopardy. Double jeopardy means double danger.

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What are the options of the accused before he enters a plea of guilty or not guilty? a.

He can file a Motion for Bill of Particulars – R116, SECTION 9. Bill of Particulars. — The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.

b.

He can move for the suspension of the arraignment – R116, SECTION 11. Suspension of Arraignment. — Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President;provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. (12a)

Rule 116 Arraignment Purpose: to comply with due process A person has a constitutional right to be informed of the nature and cause of accusation. The first duty of the judge in arraignment is to ask him if he has a counsel. If he has none, to ask him if he wants a counsel. Rule 116, SECTION 6. Duty of Court to Inform Accused of his Right to Counsel. — Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him. (6a) Under our present rules, can the accused be arraigned through his counsel? No. It must be personal to the accused. How is an accused arraigned? What are the matters to be asked during arraignment? Look at Rule 116. 1. 2. 3.

The accused is given a copy of the complaint/information. Reading the same in the language/dialect known to him Asking him whether he pleads guilty or not guilty.

Illustration: When Napoles was arraigned for serious illegal detention, she moved for the suspension of her arraignment on the ground that she was suffering from irregular high blood pressure. Is that a ground for the suspension of arraignment? NO! High blood pressure is not found in Sec. 11. c.

Motion to Quash. Rule 117, SECTION 1. Time to Move to Quash. — At any time before entering his plea, the accused may move to quash the complaint or information.

Rule 116 actually has a very big chance of being asked on several aspects. The accused is asked on whether or not he pleads guilty or not guilty. He did not answer, what plea will be entered in the record? Not guilty. * A plea of guilty is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed by law under the circumstances. (People vs. Ng Pek, 81 Phil. 563). In this case, the defendant was only allowed to testify in order to establish mitigating circumstances, for the purpose of fixing the

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penalty. Said testimony, therefore, could not be taken as a trial on the merits, to determine the guilt or innocence of the accused. In view of the assertion of self-defense in the testimony of the accused, the proper course should have been for the court a quo to take defendant's plea anew and then proceed with the trial of the case, in the order set forth in Section 3 Rule 119 of the Rules of Court: "SEC. 3. Order of trial. — The plea of not guilty having been entered, the trial must proceed in the following order: "(a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges. "(b) The defendant or his attorney may offer evidence in support of the defense. "(c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question. "(d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written or partly written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case." In deciding the case upon the merits without the requisite trial, the court a quo not only erred in procedure but deprived the prosecution of its day in court and right to be heard. This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy." The present state of jurisprudence in this regard is that the above provision applies even if the accused fails to file a brief and raise the question of double jeopardy (People vs. Ferrer, L-9072, October 23, 1956; People vs. Bao, 106 Phil. 243; People vs. de Golez, 108 Phil. 855) The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is settled that the existence of a plea is an essential requisite to double jeopardy (People vs. Ylagan, 58 Phil. 851; People vs. Quimsing, L19860, December 23, 1964). In the present case, it is true, the accused had first entered a plea of guilty. Subsequently, however, he testified, in the course of being allowed to prove mitigating circumstances, that he acted in complete selfdefense. Said testimony, therefore as the court a quo recognized in its decision — had the effect of vacating his plea of guilty and the courta quo should have required him to plead anew on the charge, or at least direct that a new plea of not guilty be entered for him. This was not done. It follows that in effect there having been no standing plea at the time the court a quo rendered its judgment of acquittal, there can be no double jeopardy with respect to the appeal herein. 1 Furthermore, as afore-stated, the court a quo decided the case upon the merits without giving the prosecution any opportunity to present its evidence or even to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental

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pre-requisite its action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy (People vs. Cabero, 61 Phil. 121; 21 Am. Jur. 2d., 235; McCleary vs. Hudspeth, 124 Fed. 2d., 445) ||| (People v. Balisacan, G.R. No. L-26376, August 31, 1966) * REMEDIAL LAW; CRIMINAL PROCEDURE; PLEA OF GUILTY; PLEA OF GUILTY TO THE CRIME CHARGED JUSTIFIES IMPOSITION OF PENALTY TO WHICH ACCUSED PLEADED AND NOT TO LESSER PENALTY. — It must be emphasized that accused-appellant did not plead to a lesser offense but pleaded guilty to the rape charges and only bargained for a lesser penalty. In short, as aptly observed by the Solicitor General, he did not plea bargain but made conditions on the penalty to be imposed. This is erroneous because by pleading guilty to the offense charged, accusedappellant should be sentenced to the penalty to which he pleaded. It is the essence of a plea of guilty that the accused admits absolutely and unconditionally his guilt and responsibility for the offense imputed to him. Hence, an accused may not foist a conditional plea of guilty on the court by admitting his guilt provided that a certain penalty will be meted unto him. 2. ID.; ID.; ID.; CONDITIONAL PLEA EQUIVALENT TO PLEA OF NOT GUILTY: NO DOUBLE JEOPARDY; SINCE CONVICTION WAS BASED ON A VOID PLEA BARGAINING. — Accused-appellant's plea of guilty is undoubtedly a conditional plea. Hence, the trial court should have vacated such a plea and entered a plea of not guilty for a conditional plea of guilty, or one subject to the proviso that a certain penalty be imposed upon him, is equivalent to a plea of not guilty and would, therefore, require a full-blown trial before judgment may be rendered. In effect, the judgment rendered by the trial court which was based on a void plea bargaining is also void ab initio and can not be considered to have attained finality for the simple reason that a void judgment has no legality from its inception. Thus, since the judgment of conviction rendered against accused-appellant is void, double jeopardy will not lie. 3. ID.; ID.; ID.; APPELLANT'S FAILURE TO QUESTION THE PROCEDURAL ERRORS IN THE FIRST ARRAIGNMENT IS DEEMED A WAIVER OF HIS RIGHT TO QUESTION THE SAME. — Nonetheless, whatever procedural infirmity in the arraignment of the accusedappellant was rectified when he was re-arraigned and entered a new plea. Accused-appellant did not question the procedural errors in the first arraignment and having failed to do so, he is deemed to have abandoned his right to question the same and waived the errors in procedure. 4. ID.; ID.; PLEA OF GUILTY TO CAPITAL OFFENSE; LEGAL REQUIREMENTS OF SUCH PLEA. — Under the present rule, if the accused pleads guilty to capital offense, trial courts are now enjoined: (a) to conduct searching inquiry into the voluntariness and full comprehension of the consequences of his plea; (b) to require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (c) to ask the accused if he so desires to present evidence in his behalf and allow him

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to do so if he desires. This Court, in a long line of decisions imposed upon trial judges to comply with the procedure laid down in the rules of arraignment, particularly the rules governing a plea of guilty to a capital offense in order to preclude any room for reasonable doubt in the mind of either the trial court or of this Court, on review, as to the possibility that there might have been some misunderstanding on the part of the accused as to the nature of the charges to which he pleaded guilty and to ascertain the circumstances attendant to the commission of the crime which justify or require the exercise of a greater or lesser degree of severity in the imposition of the prescribed penalties. Apart from the circumstances that such procedure may remove any doubt that the accused fully understood the consequences of his plea is the fact that the evidence taken thereon is essential to the fulfillment by this Court of its duty of review of automatic appeals from death sentences. 5. ID.; ID.; ID.; CASE AT BAR. — We have carefully reviewed the record of this case and are convinced that the trial judge has faithfully discharged his bounden duty as minister of the law to determine the voluntariness and full understanding of accused-appellants' plea of guilty. The absence of the transcript of stenographic notes of the proceedings during the arraignment do not make the procedure flawed. The minutes of the proceedings indubitably show that the judge read the Informations to the accused-appellant both in English and Tagalog, asked him questions as to his understanding of the consequences of his plea, his educational attainment and occupation. Accused-appellant could have known of the consequence of his plea having pleaded twice to the charges against him. In fact, in the two (2) letters sent to the trial court judge, accused-appellant not only admitted his "sins" but also asked for forgiveness and prayed for a chance to reform. 6. ID.; ID.; IMPROVIDENT PLEA OF GUILTY; IMPROVIDENT PLEA OF GUILTY LOSES SIGNIFICANCE WHEN THE CONVICTION IS PREDICATED ON EVIDENCE PROVING THE COMMISSION OF THE CRIME. — While we have in a catena of cases set aside convictions based on pleas of guilty in capital offenses because of the improvidence of the plea, we did so only when such plea is the sole basis of the judgment of the condemnatory judgment. Thus, when the trial court in obedience to this Court's injunction, receives evidence to determine precisely whether or not the accused has erred in admitting guilt, the manner in which the plea of guilty is made loses legal significance, for the simple reason that the conviction is predicated not on the plea but on the evidence proving the commission by the accused of the offense charged. In such case, it cannot be claimed that defendant was sentenced to death without having been previously informed of the nature of the charges against him and of the qualifying and aggravating circumstances recited in the information, as he is fully apprised not only of the allegations in the information but of the entire evidence of the prosecution. ||| (People v. Magat, G.R. No. 130026, May 31, 2000) When there is a conditional plea, the plea should be not guilty and the hearing should be held.

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SECTION 1. Arraignment and Plea; How Made. — (a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information. CTaIHE (b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him. (1a) (d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (n) (e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment. (n) aIDHET (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (cir. 1-89) (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. (sec. 2, cir. 38-98) SECTION 2. Plea of Guilty to a Lesser Offense. — At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (sec. 4, circ. 38-98) Illustration: X was accused of rape with homicide where the penalty is reclusion perpetua. X pleaded guilty to that capital offense. The court immediately imposed upon him penalty. Is the court correct? No. When one pleads guilty to a capital offense, the court has the duty to conduct searching questions

Dean Riano’s Lecture 2014

to determine the voluntariness of the plea and the full comprehension of the consequences of the plea. The court will also order to prosecute to prove the guilt of the accused and determine the precise degree of culpability. Sec. 3. But when the offense is not capital, (i.e. Homicide) Rule 116, SECTION 4. 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. RULE 117

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you did not use the other grounds, they are also waived. What are those grounds that are not waived? paragraphs (a), (b), (g), and (i) of section 3 of this Rule. When there is a ground for MTQ, the court is not obligated to dismiss. If the defect can be corrected by amendment, the court will order amendment. For example, if the facts actually state the charge wrongly or defectively, the court will order the prosecutor to make the proper corrections because the court is not obligated to dismiss the case. If it can be corrected then correct it.

Motion to Quash -

Also an omnibus motion Memorize the grounds

SECTION 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (3a) SECTION 9. Failure to Move to Quash or to Allege Any Ground Therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8) * if you do not file a motion to quash the grounds for motion to quash are waived. And if you filed a motion to quash and

What cannot be corrected is lack of jurisdiction. It is very difficult to correct it if the court really has no jurisdiction. Rule 117, SECTION 4. Amendment of Complaint or Information. — If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. (4a) If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. * pag na-grant ang MTQ, na-dismiss ang case, pwede pa bang i-refile ang case kahit na sabihin mo di na pwede kasi double jeopardy? Pwede maka-refile unless the grounds are prescription and double jeopardy Now, let’s learn the concept of Double jeopardy. Double jeopardy means double danger. So that there could be double danger for being penalized for the offense, there must be a first danger or first jeopardy. If there is no first danger, there would be no second danger; there would be no double jeopardy. Requisites for the first jeopardy: a) b) c) d)

A court of competent jurisdiction A valid complaint or information A valid plea or arraignment Previous conviction or a previous acquittal or dismissal without the express consent of the accused.

When all of these are present he can no longer be sued for the same offense or an attempt or frustration of that offense or of an offense that includes that offense or is necessarily included therein. X was convicted by the court with murder. The court has jurisdiction. There was a valid information, valid plea; convicted. First jeopardy commences. He cannot be sued for murder, frustrated murder, attempted murder, all those

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included there, homicide, frustrated homicide, attempted homicide, physical injuries.

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Rule 118 Pre-trial

X was convicted of murder by MTC. Everybody forgot the law. after conviction one prosecutor remembered that RTC is in the jurisdiction of RTC. Can he be charged of murder in RTC? Yes. The first element of first jeopardy which was a court of competent jurisdiction is absent. Therefore, when he was charged of murder by MTC there was no danger of being validly imprisoned as it was a court without jurisdiction. An information for homicide was filed in RTC Manila. It was signed and certified by the city fiscal of Angeles City. The accused pleaded not guilty. Can he be charged again of homicide in the same court by an information signed by the city fiscal of Manila. Yes. Because the officer who signed the information is not authorized to do so, there was no valid information. The city fiscal of Angeles City cannot file an information in Manila. X was sued for adultery under an information filed by the prosecutor of the city of manila. It was filed in manila because the crime was committed there. She was acquitted. Can it be refiled? Yes. The crime of adultery can only be filed upon the complaint of the offended party not upon information. This is a private crime. Read Rule 110, Sec. 5. x x x 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. x x x You are required to sue both offenders in adultery and concubinage. The defences available are consent and pardon. Kailangan may previous acquittal or previous conviction. Dismissal is not acquittal. Dismissal lang. Dapat without his express consent. If my case is dismissed by the prosecutor, hindi man lang ako tinatanatong basta dinismiss lang at nirefile, I can invoke double jeopardy. It was not without my express consent. Kapag ikaw ang nag-file ng MTQ at dinismiss ng court, malaki ang posibilidad na pwede ma-refile. Because it was dismissed with your consent. Ikaw mismo ang nag-file ng MTQ. Maliban na lang kung ang ground mo sa MTQ is prescription or double jeopardy, di mo na yan marefile. * The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasioffense, regardless of its various resulting acts, undergirded this Court's unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz, decided in 1954|||(Ivler y Aguilar v. Modesto-San Pedro, G.R. No. 172716, November 17, 2010)

SECTION 2. Pre-trial Agreement. — All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. 6.

Very strict sa criminal case. Walang ganyan sa civil case. Rule 119

SECTION 23. Demurrer to Evidence. — After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1)on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a) The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n) * in criminal case, the court can dismiss the case on its own initiative. But when it dismisses the case, it must first give the prosecution the opportunity to be heard. The ground in criminal case for demurrer - insufficiency of evidence. In the civil case it has the same concept but named differently- under the facts and law the plaintiff is not entitled to the relief. No need of leave of court for demurrer in civil case. But in criminal case there are 2 types of demurrer. 1. 2.

With leave of court Without leave of court

Dean Riano’s Lecture 2014

Upon granting the demurrer in the civil case, the case is dismissed dahil MTD yan. Plaintiff can appeal. Upon granting the demurrer in the criminal case, the case is dismissed. Hindi yan dismissal. Ang tawag dun ay acquittal kaya walang appeal. 2 kinds of dismissal that even with the consent of the accused it is not dismissal but actually an acquittal: MTD on the ground of violation of the right to speedy trial. b) Demurrer to evidence moved by the accused.

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Settlement of estates Illustrations: 1. My only living parent died. I am the only heir. There is no will. Papa left considerable estate in both personal and real properties. What is the most efficient way of settlement of the estate of my deceased parent? I will simply execute an affidavit of self-adjudication or self-adjudication by a sole heir.

a)

There is also an MR/MNT in a criminal case. Rule 121 SECTION 2. Grounds for a New Trial. — The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (sa civil case is FAMEN) (b) 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. (sa civil case is NDE) SECTION 3. Ground for Reconsideration. — The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings Meron ding appeal sa criminal case. Ang fresh period of 15 days is also applicable to criminal case. Yu v. Tatad. SPECIAL PROCEEDING RULE 1, SECTION 3. Cases Governed. — These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. x x x (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. Are the special proceedings outlined in the rules of court exclusive? No. There are also those found outside the rules of court i.e, corporate rehabilitation, insolvency, suspension of papers, arbitration, writ of amparo, habeas data, etc. A writ of Amparo is a special proceeding. It is a remedy by which a party seeks to establish a status, a right or particular fact. It is not a civil nor a criminal action, hence, the application of the Revised Rule on Summary Procedure is seriously misplaced.||| (De Lima v. Gatdula, G.R. No. 204528, February 19, 2013)

Suppose there are debts, I can still do that provided I pay for the debts. Suppose there are taxes, I will have to pay for it. You file your affidavit with the Register of Deeds. RD will order the publication of (NOT THE AFFIDAVIT) the notice that there was an affidavit of self-adjudication in newspapers of general circulation for 3 consecutive weeks. If all has been complied with, RD will prepare the necessary changes in the real property. 2. Daddy died and left substantial amount of assets. No debts, all taxes paid. There is a will. I am the only heir in the will. I executed an affidavit of self-adjudication. It was recognized by the RD after the proper publication. Can I execute an affidavit of self-adjudication? No. Rule 75, Section 1. No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution. 3. X died and he had substantial estate. He had no will nor heirs. What principle will come in? Rule 91. Escheats. It is a process by which the government claims property where there is no possible private owner anymore. The philosophy is so that the private individuals will not be quarrelling over the estate and so the government will come to the picture. The government files an escheat proceeding through the SolGen or its representatives. The publication here in escheats is not 3 consecutive weeks but rather 6 consecutive weeks. It is not the national government which will be the beneficiary of the estate. It will be the city or municipality concerned. Suppose an heir appears, he must file a claim within 5 years from the distribution of estate. 4. X died and he had substantial estates. He died without a will. He had several heirs. Assuming the debts and taxes are to be paid willingly by the heirs, how is the estate settled? a) extrajudicial settlement – like a compromise or amicable settlement, the heirs will settle the estate among themselves but if they could not agree on how the settlement could be made, ther are 2 ways: a) One may file for a petition for letters administration b) One may file for a petition for partition – no longer a spec pro but already a special civil action R69. 5. X died with a will and several heirs. They brought the will to their lawyer and the latter executed a deed of extrajudicial partition among the heirs strictly following the will.

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This is not valid because there is a will which must be probated first.

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RA 10172 – This allow corrections of entries in City or Municipal Civil Registrar, Clerks of Courts of the Shari’a Courts, or the Consul General

Probate How to commence probate? The testator himself during his lifetime filed a petition for probate, can this be done? Yes! Can there be allowance of the will without formally filing a petition? Yes, the one in custody will deliver to the clerk of court of the court having jurisdiction and that is equivalent to the filing of the petition. The clerk of court is now going to send notices to devisees, heirs and legatees. It is like commencing the petition. Who commences the petition? Executor, legatee, devisee, heir or any person interested to the estate. Is there a publication? Yes. What is the issue in the probate of the will? Whether or not the will was duly executed. It is about the extrinsic validity of the will. The probate court has no jurisdiction to determine the real ownership of the property. Its duty is to ascertain: Whether the formalities were followed. Whether the testator was of unsound mind. Is there are instance where the court can deal with the intrinsic validity of the will or ownership of the property? Yes. If all the people involved are all heirs and they agree to such determination. Writ of Amparo What rights does it protect? Life, liberty or security. Not property.

RA 9048 allows: 1.

2.

Correction of entries in the civil registry because of clerical or typographical error (an error in writing, transcribing in the course of the performace of clerk’ duty) Change in First name or Nickname (means any second name after your first name) Example: your name is Maria Felisa. First name is Maria, second name is Felisa. Hindi Feling, or mayang, or isay.

c.f. Lee v. CA You cannot change entries in the civil register because to change is to put something else to supplant the original. Correction is to set right or to make right. But with respect to first name or nickname, it could not only be changed, it could also be corrected. Other entries cannot be changed but can only be corrected. So you cannot change the surname but you may correct it for clerical or typographical error. If my surname is Riano, I cannot, through this law, be changed to Mariano or Rianobaby. If I want it to be changed, it cannot be done administratively, I will go to court through Rule 103. If my citizenship in my birth certificate is written as Mexican, I cannot change it administratively to Filipino, I have to go to court. But unless, it is a clear clerical or typographical error. It is not correct to say that a surname cannot be corrected. It cannot be changed without a judicial order. GR: Art. 412 and Art. 376 NCC

It involves Forced disappearances and extrajudicial killings.

Go to Rule 103 and Rule 108.

You don’t file it in the MTC. The lowest court you can go to is RTC, going up including SB, CA and SC.

ARTICLE 412.No entry in a civil register shall be changed or corrected, without a judicial order.

If you lose in the lower courts, go to SC under Rule 45 but you can raise question of facts or mixed questions of facts and laws as an exception to the rule that only questions of law can be raised on Rule 45. (writ of amparo. writ of habeas data, writ of kalikasan)

ARTICLE 376.No person can change his name or surname without judicial authority.

Rule 103 and Rule 108 Change of Name and Correction of Entries in the Civil Registers

A correction of the surname must be in relation to other available documents. Hyphen is omitted. There are names that are hyphenated. The hyphen is part of the name, hence, if omitted, the name is considered misspelled. Example:

Not all change of name and correction of entries will use Rule 103 and Rule 108.

His father is Cipriano Ladines Mag-aso while his mother is Concepcion Tan Julag-ay.

RA 9048

The names of his parents were correctly entered in his birth certificate, but his own name is entered as Santiago Julagay Magaso when it should be Santiago Julag-ay Magaso. This is a clerical error within the meaning of R.A. No. 9048

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This is not a change of surname. This is setting right what has to be corrected. Ang hindi pwede na gawin through the Civil Registrar ay kung baguhin niya ang kanyang apilyedo from Mag-aso to Mag-pusa. Contest sya sa court. Pumasok ang RA 10172. Sabi nito na pwede rin daw macorrect ang following: Date of birth- only the month and the day. Hindi pwedeng icorrect ang year of birth. Ito ang kini-criticize na law dahil kung ang mali ay ang year of birth dito papasok ang RA 9048. Sabi ng Civil Registrar, Kahit sinasabing di pwedeng palitan ang year of birth, kung hayagan namang clerical error, pwede i-correct. Hindi change. Ang correction kasi yung hayagang mali, tinatama mo. Nasa records, date of birth ng ama, March 20, 1924. Date of birth ng ina, January 25, 1930. Ang bata isinilang, November 10, 1950. Yan ang totoo. Pero nung kumuha siya ng birth certificate para mag-abroad, ang kanyang date of birth, November 10, 1850.. hehe... nauna pa syang isinilang sa kanyang magulang. Hehe... Ang sabi ng nag-oopose, bawal sa RA 10172 na palitan ang year of birth, nakalagay dun month and day. Ang sabi ng Civil Registrar, kung pwede lang magsalita ng masama, “Ulol ba kayo?” this is a patent and clearly clerical error. This is not a change in the year of birth but only a correction. It is not possible for a child to be born almost 100 years before the parents. Sex – basta patently clearly a clerical error. Nagkakadiskubrehan to pag kumukuha ng passport. Nangyari sa’kin to. Pinapalitan ko, civilly administratively. Hindi correction, but change, pwede yun. Ground is I have used that continuously and habitually and I have been publicly known by that. Ang pangalan ko mahaba din dahil gusto ng mga lolo at lola ko nandun ang mga pangalan nila! @.@ Willard Avelino Antonio Ronaldo Gregorio Riano. Nung akoy Grade 1, pag sinabi ng teacher isulat ang inyong pangalan, sila nagdudrawing na, ako sa pangalan pa lang. Her name is Juanita from elementary to college. Pag-kuha niya ng birth certificate, the name pala is Jaunita. Clerical error based on other available documents. Correction yan. Lahat ng family members niya ang apilyedo ay Corpuz sa kanya ay Corpos. Pinayagang pinalitan. It was corrected. What are the grounds for the change of First name and nickname? RA 9048, Section 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the following cases:

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(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or (3) The change will avoid confusion. Case 1. The first name is ridiculous. For reason unknown to him, his parents, Adelaida Dominguez Purissima and Dominador Angeles Santos, registered him with the name Lucifer Purissima Santos. Actually, "Lucifer" means "morning star" in Latin. Sometimes, it is referred to as the planet Venus when appearing as the morning star. However, to many, "Lucifer" is a devil's name, a fallen rebel archangel. Because of this, Lucifer Purissima Santos becomes object of laughter. In countless occasions, people twitted him as the "devil man". Tired of being ridiculed, he now wants to change his first name to Luisito. He can do this under R.A. No. 9048. In this case, it should be considered that a first name may appear ridiculous to others while it may not be so to some. To the petitioner, he may consider his first name as ridiculous, while to the MCR such first name is not ridiculous. To avoid conflict on the possible contrasting perception of what is and what is not a ridiculous first name, the MCR shall rely heavily on the supporting papers, including third party testimony, in deciding the petition without regard as to what he believes is a ridiculous first name. Case 2. The first name is tainted with dishonor. Example: Felix Cruz de Guzman is a businessman who owns several manufacturing companies, and a member of several business and professional associations. However, he has three namesakes who have criminal records with NBI and PNP. The first namesake was convicted of rape with homicide, who escaped from detention; the second with acts of lasciviousness; and the third with murder. In many occasions, he experienced difficulty of getting clearance from either or both NBI and PNP. In fact, when he applied passport for the ·first time, he was subjected to further investigation because one of his namesakes was one of the blacklisted individuals who have a "hold departure order". Felix Cruz de Guzman wants to change his first name from Felix to Felixberto. Can he do it-under R.A. No. 9048? Yes, he can do it provided he can support his allegation with convincing and concrete proofs that- indeed, his first name is tainted with dishonor, like a certification from NBI concerning his namesakes, a copy of the "hold departure order" from Bureau of Immigration, and others.

Dean Riano’s Lecture 2014

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Case 3. The first name is extremely difficult to write or pronounce.

and concrete proofs that he has been using Anthony since childhood.

Her mother is very fond of long names. In fact, her elder sister's first name consists of 19 letters. In her case, her name is Mirasoledardanellamorenacacharel which consists of 32 letters. She now wants her first name to be changed to Joy. In another case, a mother gave a first name to her first son consisting of first names of several well-known personalities in show business. Thus, the son had this first name: Fernando Joseph Paquito Marlon Robin Carlos Rogelio. Because of the difficulty of writing very long compound name, he wants his first name to be changed to Gil.

If she does want to change her first name from Ma. Cecilia to Maricel, she can do so under R.A. No. 9048. She should submit as many supporting papers as these are available to her in order to convince the CIMCR that the first name she wants to adopt has been habitually and continuously used by her. Case 2. The petitioner has been publicly known by that first name or nickname in the community.

In both cases, the first names are extremely difficult to write or pronounce because of their length. The affected individuals can have their first names changed under R.A. No. 9048.

Second ground The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community. Case 1. Habitual and continuous use of the first name to be adopted. Example 1: Maricel Limon dela Guardia is now 22 years old. She finished college and is now a professional nurse. Because of an opportunity to work abroad, she applied for a passport. As a supporting document to her application for passport, she obtained her birth certificate from NSO. She was surprised to find out that her registered first name is different from what she' is presently using. In her birth certificate, her first name was recorded as Ma. CecilIa. Because of this inconsistency between her recorded first name and the first name she has been using since childhood, she lost the opportunity to work abroad. Example 2: He has been using the name Anthony Celies Moriones since childhood. All his school records from elementary to college, including his employment records, show his name as Anthony Celles Moriones. Lately, when he requested his birth certificate from OCRG in connection with his application for passport, he found out that his registered name was Marc Anthony Celles Moriones. The Passport Division refused to issue to him a passport under the name Anthony Celles Moriones. As he needed the passport very badly, he applied for change of his first name from Marc Anthony to Anthony on the ground that he has habitually and continuously used the latter first name since childhood. Will his petition be considered appropriate under R.A. No. 9048? The answer is yes, provided he should be able to support his allegation with convincing

Example: His name is Baby James Encarnacion Cruz. He is now 45 years old, and has been very popular with his first name as Baby James. In fact, he used that first name very effectively in politics. He was elected as municipal mayor when he was 25 years old, and now he is a governor. Everybody calls him Baby James, formally and informally. When he got married, that name was also entered in his marriage certificate. Lately, he received an invitation to attend an international convention in USA. For his travel abroad, he now needs his birth certificate to apply for a passport and a US visa. Much to his surprise, his first name in his birth certificate is not Baby James but Jimmy Boy. As he has been publicly known in the community as Baby James, he can have his registered first name, Jimmy Boy, changed in accordance with R.A. No. 9048. Third ground The change will avoid confusion. Case 1. Petitioner's present first name creates confusion Example: Here is a case of two neighbors in barangay San Guillermo. They have the same first name Milagros, same middle initial, A, and same last name Monteja. The middle name of the first woman is Aguilar while the second woman has Arguendo. Both women usually write their name as Milagros A. Monteja. It so happened that in barangay San Guillermo, there is no house number that could guide the postman in delivering mails. Consequently, a letter intended for Milagros Aguilar Monteja is sometimes delivered to Milagros Arguendo Monteja, or otherwise. The postman cannot be faulted because both women are using Milagros A. Monteja. To avoid further confusion, Milagros Aguilar Monteja decides to have her first name changed to Carmela. She can do this under R.A. No. 9048. Important notes in connection with the change of first name: Section 5 of R.A. No. 9048 requires that the petition for change of first name shall be published at least once a week for 2 consecutive weeks in a newspaper of general circulation. In connection with this publication, care should be taken with regard to the first name to be published. If a wrong name is published, the publication, even with an affidavit from the publisher, is not considered compliance with the requirement of Section 5 of R.A. No. 9048. In one case, a petition for change of name was disapproved by the Supreme Court because of the failure to comply with the requirement of publication. The Supreme Court said: Petitions

Dean Riano’s Lecture 2014

for a change of name are proceedings in rem. Therefore, strict compliance with the requirements of publication is essential, for it is by such means that the Court acquires jurisdiction. If the petitioner's name is spelled ''Jayme ", but the published order spells it as ''Jaime' the error is substantial because the publication did not correctly identify the party to said proceedings. The difference of one letter in a name may indeed means the distinction of identities of different persons. (Jayme S. Tan vs. Republic, L-16384, April 26, 1962)37 When a petition for change of first name is granted by the C/MCR, and such decision is affirmed by the CRG, the former shall carry out the decision by annotating the fact of change of first name in the successful petitioner's birth certificate. No original entry shall be physically erased, canceled, changed or obliterated in the birth certificate. The successful petitioner shall not be issued any amended birth certificate. This is in line with a decision of the Supreme Court: If a change of name is authorized, the original entry must not be erased or canceled. The proper way would be to make the proper marginal corrections or annotations.

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